Slips, falls and litigation: Navigating legal liability when the going gets icy
Injuries don't always justify a lawsuit. Just be careful out there, says Edmonton lawyer
Under this morning's newly fallen blanket of white, treachery awaits.
As of noon Wednesday, EMS had responded to 38 falls over a 48-hour period due to the icy conditions in Edmonton, far above the typical five falls a day, Alberta Health Services said.
With the snow-thaw-freeze-and-repeat cycle making footholds tricky and falls likely, an Edmonton personal injury lawyer says suing for injuries can be its own slippery slope.
Craig MacKay says people who have fallen will always think they have a case but it isn't that simple.
The cases can be tough to prove, depending on where the fall happened and what kind of steps had been taken to mitigate the risk, he told CBC Radio's Edmonton AM on Wednesday.
"Every fall is not going to result in your ability to make a claim," said MacKay, a lawyer with Robinson LLP .
"It's dependent on somebody doing something wrong that caused you to fall, and you have to be able to prove their negligence that they didn't do something or that they did something that resulted in you falling."
According to the Injury Prevention Centre at the University of Alberta, slips and falls on ice send almost 15,000 Albertans to the emergency department each year. Of that total, nearly 1,700 are injured seriously enough to require being admitted.
From a legal standpoint, MacKay pointed out that there are significant differences between slipping and falling on private versus public property.
"On private property, the standard is just negligence, basically … if they haven't taken reasonable steps to make the property safe," he said.
Prove gross negligence on public property
"You've got to do what's reasonable to make sure that the person is reasonably safe while using the property for its intended use. So if you fall on someone's front steps and they haven't swept it or cleaned it of snow for the last two weeks, that's probably unreasonable. You very well could have a good claim against the property owner or the occupier of that premise."
However, the liability changes when it comes to public streets and sidewalks, he said. Under the Municipal Government Act, the situation must be proven to be gross negligence, defined as a conscious and voluntary disregard of the need to use reasonable care.
"We get many calls, especially when it's a freeze-thaw cycle like this," MacKay said. "A lot of them do happen on public property — on city sidewalks, crossing the street, that type of thing."
Mother nature clearly wants me to practice my break dancing ... As I walk to campus. Sheet of ice lovingly coated in over an inch of powder. <a href="https://twitter.com/hashtag/winter?src=hash&ref_src=twsrc%5Etfw">#winter</a> <a href="https://twitter.com/hashtag/yeg?src=hash&ref_src=twsrc%5Etfw">#yeg</a> <a href="https://twitter.com/hashtag/Uofa?src=hash&ref_src=twsrc%5Etfw">#Uofa</a>—@Kat_Bish
But those complaints don't usually result in lawsuits that can be proceeded with, he added.
"Generally you're looking at very difficult litigation if you're looking to sue the city for a slip and fall on the public sidewalk," he said. "There are a few exceptions to that, and every case is different, but it's definitely something you've got to be careful about."
A sidewalk in front of a house is owned by the city, not the property owner. However, the city bylaw requires sidewalks to be cleared of snow and ice as soon as possible or face a $100 fine. The city also provides free sand at central drop boxes of participating communities.
Wednesday morning's snowfall, which started at about 5:30 a.m., sparked a spate of take-caution warnings on social media. "There's sheets of ice lurking under that snow on sidewalks. Be cautious," tweeted Karen Douglas.
Actual footage of me going to work this week. <a href="https://t.co/E1rWld5o1L">pic.twitter.com/E1rWld5o1L</a>—@woodwarddotCA
In the case of a fall where an injury has been sustained and the victim believes litigation is a possibility, MacKay said it's important to get photos of the scene as quickly as possible — either to take them yourself at the scene or send someone back to the scene before the conditions can be changed
"Obviously if you're badly injured this may not be the first thing that comes to mind," he said.
"But, obviously from our perspective, the best thing you can have is a photograph that shows exactly where and what caused you to fall."
Tips for staying on your feet
Suggestions from Don Voaklander, a U of A professor and director of the Injury Prevention Centre, reported by folio.ca:
- Choose winter footwear with soft, flexible soles for maximum tread.
- Walk like a penguin, which Voaklander describes as keeping your centre of mass over your feet and taking short, shuffling steps.
- Ice cleats are helpful, but don't forget to adjust your stride for short trips when you've chosen not to strap them on.