A Finding of Municipal Liability when Man injured by falling Post

Under the Ontario Municipal Act, municipalities have an obligation to keep people reasonably safe from harm, which includes maintaining highways and buildings in good repair.  Municipalities also have a duty of care in many other capacities including, but not limited to, building inspections and safety codes, park design and maintenance, water and sewer maintenance, sidewalk repair and maintenance, public transit, and police services.  If someone is injured due to an unsafe condition and they allege that this condition resulted from municipal negligence, a judge must assess whether there was a state of non-repair that falls within the municipality's statutory obligations and also, whether the accident victim was acting like a reasonably prudent person when they were injured.   In the following example, an Ontario Superior Court found an Ontario municipality liable for a man's injuries when his car was hit by a utility pole that was likely improperly constructed.

 In Ouellette v. Hearst (The Corp. of the Town of), an injured man sued the municipality of Hearst after a utility pole broke and fell on his vehicle.  The utility pole was erected with a small banner across Highway 11, which is a four-lane highway at this location, as part of the City’s 75^th anniversary celebration.  The banner was held up by two 45 foot poles on each side of the highway attached by a steel cable with a rope to secure the banner to the cable. At the time of the accident, a rope had detached from one of the poles and was dangling from the banner at about the centre of the highway.

On impact, when the pole fell on the plaintiff’s van, Mr. Ouellette’s knee struck the steering wheel, but because he initially did not feel pain, he believed he was uninjured and returned to work on the day of the accident.  However, in the evening, he awoke with serious back pain. The pain continued and caused mobility problems for several weeks and as a result, he contacted a chiropractor.  At about the same time, the plaintiff attended the emergency room as well as clinics due to severe pain and swelling in his knee.  His physician ordered diagnostic imaging and referred him to a specialist who diagnosed a bucket-handle meniscus tear in his left knee.  Mr. Ouellette then underwent orthopedic surgery for his knee. During this time, the plaintiff initially worked to his best abilities, but because the pain in his knee was so intense, after a few months he went on short-term disability.

Mr. Ouellette had a pre-existing knee condition due to four incidents of injury while playing hockey in the years prior to the accident.  However, about six years prior to the accident he saw an orthopedic surgeon who reviewed diagnostic imaging and reported no problems requiring surgery on his knee.  Based on the medical evidence presented, the trial judge concluded that the progression and timing of the pain and condition of the plaintiff’s knee and back supports a finding that, on a balance of probabilities, the accident was the cause of Mr. Ouellette’s overall condition, even when considering his pre-existing knee injuries. The key reasons for this conclusion are: the fact that the plaintiff was never diagnosed with back pain before the accident; he had no reason to see a doctor for six years prior to the accident; and it’s unlikely that he could have endured a significant meniscus tear over a long period without it affecting his ability to work, play sports and complete other activities (prior to the accident).

Determination of Liability for Injuries

The plaintiff, Mr. Ouellette, named several defendants in his suit for damages: the Town of Hearst as well as the driver and owner of another vehicle, Mr. Bergeron and Villeneuve Construction Co., whom he held contributorily negligent in causing his injuries.  The plaintiff alleged that the rope became stuck when it hit Mr. Bergeron’s vehicle which was travelling in the opposite direction, and which subsequently caused the pole to fall. However, various evidence, including testimony by Villeneuve’s forensic engineer, was able to satisfy the court that the rope was not capable of pulling down the utility pole.  Also, the judge concluded that Mr. Bergeron’s evasive manoeuvre was cautiously executed to avoid other traffic and was a proper response to the dangling rope, and all-in-all, Mr. Bergeron’s actions were those of a reasonable and prudent driver. Thus, Mr. Bergeron and Villeneuve Construction Co. were found not negligent in causing the plaintiff’s injuries.

The Town of Hearst argued that they were not responsible for the plaintiff’s injury because, as specified in the Municipal Act, subsections 284(2) and (3), the law suit was not filed within three months of the accident and also, “municipalities cannot be sued on account of the erection of any object adjacent to or on a highway or any part of the highway not within the travelled portion of the highway”.  However, the court did not accept these defenses because the injury did not arise within the context of the municipality’s statutory duty to maintain highways in a reasonable state of repair. The highway was in good repair, and the installation of utility poles in order to hang a promotional banner is not within the scope of road repair. Further, the judge noted that the defense of a shortened limitation period also does not apply in this case.

In making a determination whether the Town of Hearst was liable in Mr. Ouellette’s injury, the trial judge noted several circumstances. Although the day of the accident was very windy, it was concluded that wind alone is not likely to break off the top of a utility pole. The judge speculated that the banner was either too heavy and/or caught too much wind, and the pole was deficient.  Also, the guy wire had detached. However, it’s most likely that several of these factors acting concurrently, contributed to the accident.  It was concluded that the pole would not have broken without negligence on the part of Hearst. 

Assessing Damages

When the accident occurred, the plaintiff was 36 years old.  Up to that point, he was an extremely active person who enjoyed many outdoor activities as well as such sports as hockey, tennis and bodybuilding.  Mr. Ouellette had been employed in various manual labour positions, and for about three years after the accident, he attempted to continue to perform his job as best as he could.  However, he needed more and more time off due to his disability and was not able to perform some of the physically demanding functions of his work.  During the five years leading up to the trial, he also required surgery and multiple rehabilitation treatments. The trial judge noted that the plaintiff’s life had been significantly affected by his chronic pain and disability, and he concluded that Mr. Ouellette’s injuries will continue to have a substantial affect on his health and ability to enjoy normal activities.  Damages for the plaintiff were assessed at $562,800 including: $110,000 in general damages (for pain and suffering), almost $400,000 for loss of income (past and future), and $54,000 for loss of household services (past and future). 

The circumstances of the Ouellette accident were unusual.  More common incidents that result in findings of municipal liability are slip and fall accidents on an unsafe condition, motor vehicle accidents on roads that were not cleared, iced or sanded, and accidents in recreational facilities.  Whatever the nature of the accident and injuries, a municipality may be found negligent in contributing to an accident victim’s injuries if it can be shown that they failed in their duty of care, for example, by failing to repair a damaged sidewalk on a timely basis.

The Injury of Ontario affiliates are highly respected and knowledgeable law firms who specialize in representing the public in negligence suits and insurance disputes.  If you or a family member were hurt as a result of probable negligence, whether on the part of a municipality or a private party, call an experienced Sault Ste. Marie personal injury lawyer to discuss the facts of your case and get a frank assessment of the strength of your claim.