The recent decision of the Court of Appeal in Fordham v. The Municipality of Dutton-Dunwich provides some useful guidance on the duty of a municipality to maintain its roads, and particularly signage, for the safety of its citizens. The case is also interesting for its discussion on the differences, if any, in urban and rural settings.
In January 2007, a 16-year-old drove his car from one friend’s house to another. He took a route through the Municipality of Dutton-Dunwich on rural roads that were unfamiliar to him. He came to an intersection with a stop sign. As he saw no approaching cars, he ignored the stop sign and drove through the intersection at about 80 km per hour. Unfortunately for him, the road curved to his right just after the intersection. In trying to navigate the curve, he lost control of his car and crashed into a concrete bridge abutting the road. He suffered brain damage.
He sued the Municipality claiming that it breached its duty to keep the road in good repair by failing to post a checkerboard sign warning of the change in the road’s alignment.
At trial, the young man was successful. The trial judge indicated that it was clearly a local practice in the rural area for drivers to go through stop signs if they considered it safe. As a result, the change in the road’s alignment was a hidden hazard and the Municipality should have provided more than a stop sign to give ordinary rural motorists reasonable notice of the hazard ahead. However, the judge also found the young man contributorily negligent because he had failed to stop at the stop sign. As a result, the trial judge apportioned liability for the damages equally between the young man and the Municipality.
The Municipality then appealed.
The Court of Appeal found in favour of the Municipality. As far as it was concerned, a municipality has no duty to keep roads safe for those who drive negligently. Running a stop sign at 80 km per hour is negligent driving. The turn in the road would have represented no hazard to a driver stopping at the stop sign or even one slowing down to perhaps 50 km per hour at the intersection.
In the court’s view, the finding of the trial judge that in rural areas, drivers go through stop signs at or near the speed limit is legally irrelevant. There is only one standard of reasonable driving and not a separate standard for rural as opposed to city drivers. That standard requires drivers to obey traffic signs. As a result, the Municipality had no duty to install an additional sign on the road.
As an interesting side note, the court went on to explore the cause of action that an individual might have for damages against a municipality failing to keep a road in a reasonable state of repair. As the court pointed out, merely proving that a road was not kept in good repair is not sufficient to justify a damage award. In fact, there is a four-step test involved under the legislation:
Firstly, the plaintiff has to prove that the Municipality failed to keep the road in a reasonable state of repair.
Secondly, the plaintiff has to prove that the non-repair caused the accident.
Thirdly, the Municipality then has three available defences to rely on:
- The Municipality could not reasonably have been expected to know about the state of repair of the road;
- The Municipality took reasonable steps to prevent the problem from arising; or
- At the time of the incident, minimum standards established elsewhere in the legislation applied and had been met.
Finally, even if it fails on any of the first three tests, the Municipality can show that the plaintiff’s driving caused or contributed to the plaintiff’s injuries.
In this case, the real question was as to whether or not the road had been kept in a reasonable state of repair given the absence of a checkerboard sign. As the court pointed out, a municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. Ordinary reasonable drivers are not perfect. They make mistakes. However, they are not negligent. The duty of reasonable repair does not extend to making roads safe for negligent drivers. In terms of signage, they are required only if without them, an ordinary driver driving without negligence would be exposed to an unreasonable risk of harm. Therefore, the mere presence of a hazard does not require that a sign be put up. The hazard must be one that puts reasonable drivers at risk. In this case, as the young man had not been reasonable in his operation of his vehicle, the road was considered safe without a checkerboard sign.
The story of this young man is sad, which is an observation also made by the Court of Appeal. However, that fact alone will not result in liability.