Hergott: Stay safe this winter

Lawyer Paul Hergott reminds pedestrians and drivers to be extra cautious when out on the roads this season

With another winter season upon us, I am going to share a little bit about the law of “slip and falls.”

The law isn’t written in some law book, by the way.

It evolves sort of like the rules of chess played by my son with my father. A rule might fit most situations, but if it gets in the way of my son’s progress, he changes it. My son manages to win most of the time!

The evolution of the law is different in that it doesn’t favour one litigant over another. It favours justice.

To learn the law about slip and falls, or any other subject matter, you need to read the very carefully considered and explained decisions of judges who have decided the outcomes of lawsuits.

Don’t call me a forked-tongued, slippery snake of a lawyer for not giving you clear, straight answers about slip and falls. The best I can do is to share about general legal principles. Please consult with a lawyer for guidance regarding any particular fact pattern.

Legal principle: an owner or occupier has a legal obligation to take reasonable care in the circumstances to make premises safe

A justice of the Supreme Court of Canada noted in one case: “Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented. Any attempt to do so would be prohibitively expensive.” (Mr. Justice Cory in Brown v. British Columbia (Ministry of Transportation and Highways), [1994] 1 S.C.R. 420).

The law has evolved to recognize the practical impossibility of maintaining walking surfaces that are 100 percent clear of ice and snow 100 percent of the time. Owners and occupiers are required only to exercise “reasonable care.”

Do you exercise a reasonable level of care to avoid those visiting your home from facing dangerously slippery surfaces? You are an owner, or an occupier, of that driveway; the sidewalk leading up to your front steps; those front steps.

Are you actively looking after the safety of couriers, delivery drivers, guests, young folks selling cookies? Your duty of reasonable care also extends to unwelcome door to door solicitors.

Do you take precautions, like the application of sand or ice, to prevent icy conditions from developing? Do you monitor those walking surfaces so that you can take action to remove ice and snow as it develops?

What about the sidewalk bordering your home? No, you don’t own it, but there are bylaws in both Kelowna and West Kelowna requiring you to clear snow and ice from those sidewalks within 24 hours of accumulation.

Another legal principle: a pedestrian has a legal obligation to take reasonable care for their own safety

You have to expect slippery walking surfaces during a Canadian winter. If you don’t, you’ve become spoiled.

That’s a danger created by those owners and occupiers who have been struggling to keep you safe. The higher the levels of protection to keep you safe, the less care you are likely to take for your own safety.

The law expects you to remain diligently careful about your own safety.

Wear footwear appropriate to a Canadian winter. You can bring your indoor footwear in a bag.

Keep a diligent lookout for slippery conditions. Keep in mind the words of Mr. Justice Cory, that ice can never be completely prevented. My translation: Assume the possibility of ice every step you take.

Take extra care when walking on sloped surfaces, stairs and in freeze/thaw temperature conditions.

Encounter a dangerously slippery surface? Stay off it! If you have to, tromp through snow to go around it.

What if there is a fall

If all property owners and occupiers took reasonable care for the safety of those coming on their premises and all pedestrians took reasonable care for their own safety, we would virtually eliminate slip and falls.

But that might be a bit much to expect in our world, so slip and falls will continue to occur.

For most slip/falls, the most significant consequence is a blow to our pride and perhaps a bruise. Some result in fractures. Most fractures resolve completely within a few weeks.

Other slip and fall injuries can be life changing. It is those that most warrant the involvement of a lawyer to assist in assessing legal liability.

It can be unclear, at the time of a slip and fall, how significant and impactful the injury might be. As a precaution, I recommend the following:

  1. “Preserve the evidence” of at the scene as immediately as possible. Hopefully, you or someone you are with will have the presence of mind to take photos as well as snippets of video of the scene to avoid a dispute as to what the conditions were. Maybe there are security cameras? Talk to nearby homes / businesses to have any potential footage preserved;
  2. Preserve your memory of what occurred, as well as the memories of any witnesses while memories are still fresh. Journal, with as much detail as you remember, everything about the incident. When I say “as much detail as you remember”, I mean that. What did you notice or not notice about the conditions as you approached the point where you fell? Which foot lost traction? How exactly did you go down? What did you notice about the walking surface while you were on the ground?
  3. Preserve your footwear. A common recommendation is to keep them off to the side and not wear them. The more you wear them, the more their tread will be worn. You want to be able to show as robust a footwear as possible.
  4. Have a consultation with a personal injury lawyer with expertise in slip and fall cases as immediately as possible. You might have difficulty finding a lawyer to assist you, because these cases are notoriously difficult to prosecute. Keep calling. Follow whatever further recommendations you are given.

I wish all of you a safe winter season. As I’ve written a number of times over the years, the very best claim is no claim at all.

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