31 March 2022
What are your rights when you slip and fall on an icy sidewalk? Are individual homeowners liable for icy sidewalk accidents in front of their houses?
Anyone who has lived through a winter in British Columbia (even relatively mild Vancouver) has encountered an icy sidewalk that was not cleared properly or at all. According to statistics from the Canadian Institute for Health Information (https://www.cihi.ca/en), falls on ice are the most common cause of sport and winter injury hospitalizations in Canada, with over 8,800 reported hospitalizations from 2019 to 2020.
Given that such injuries are common and especially dangerous for elderly people or people with mobility issues, one would expect the law to have developed to encourage people to take actions to prevent such injuries. However, the reality is that it is quite difficult for an injured person to succeed in an action for injuries resulting from a slip and fall on an icy sidewalk.
Generally speaking, sidewalks are public property (owned by the municipality) and not the property of the adjacent landowner. Although landowners do not have any legal control over the sidewalk, do they nevertheless have a duty to ensure the sidewalk is safe for people passing by? On the other hand, are municipalities responsible for accidents that occur on their sidewalks?
This post is the first in a series of three posts that examine the potential liability of individual homeowners, commercial property owners, and municipalities.
Many municipalities have bylaws that require property owners to clear snow and ice from the sidewalk in front of their property (usually within 24 hours or by 10:00 am the next morning). Failure to comply with these bylaws may result in fines, but are homeowners civilly liable if an injury occurs?
In the recent decision of Der v. Zhao, 2021 BCCA 82, the BC Court of Appeal considered that question. The 75-year-old plaintiff, Mr. Der, slipped and fell on “black ice” on a sidewalk outside the home of the defendants, Mr. Zhao and Ms. Huang, causing the plaintiff to suffer significant injuries and be rendered a quadriplegic. The evidence suggested that the defendants had contributed to the formation of ice by failing to salt that area of the sidewalk after shoveling.
Unfortunately for Mr. Der, the Court concluded that, “generally, residential property owners do not owe a duty of care to pedestrians passing by on sidewalks adjacent to their properties that are owned by municipalities.” The Court followed previous cases that have decided that the existence of snow clearing bylaws does not shift liability from the municipality to the adjacent property owner.
The Court noted that it would be unfair to place such a burden on homeowners, as the circumstances of homeowners could vary greatly, such as their property location or pedestrian traffic. Further, a pedestrian could walk past dozens or hundreds of homes, and it would not be reasonable to suggest that they are relying on each of those homeowners to keep the sidewalk free of hazards. The Court stated that pedestrians have a responsibility to take care of their own safety “in the face of uncertain and frequently changing winter sidewalk conditions.”
The Court did not completely rule out the possibility of homeowners being liable for accidents on icy sidewalks but made it clear that special or unique circumstances would be required. Property owners may be liable for “unreasonable risks” that they have created or for which they may be responsible. Further, property owners have a duty to ensure that conditions or activities on their property do not flow off and cause injuries.
The above discussion illustrates that it is generally difficult to succeed in a claim for a slip and fall on an icy sidewalk. However, there are exceptions and special circumstances that may result in liability against property owners or municipalities. The legal considerations can be complex, which is why it is important to seek legal advice regarding your rights and responsibilities.
If you have been involved in a slip and fall accident, we encourage you to contact one of our lawyers for a free consultation.
Ryan Chew is an Associate in our Personal Injury Group.