Making a Winter Slip and Fall Claim in Alberta
We have witnessed a mild autumn, but we will soon be in the grips of winter, increasing the chance of slip and fall accidents.
Ice and snow can make walking treacherous. And let's not forget the thaw and freeze following a chinook. The hazards that accompany winter weather mean you should be taking precautions to avoid a spill. However, accidents do happen, and we are here to help if you have been injured due to someone else's negligence.
Slip and Fall: WHO DO I SUE?
First, it is essential to note that just because you have been injured after falling on ice or snow, that doesn't guarantee that your lawsuit will be successful. Proving negligence comes with challenges, and you have a part to play as well. For example, if you didn't take precautions to avoid a fall, such as wearing the correct footwear or ignoring potential hazards, it may negate your claim. Even if you win your case, courts can take any failure to act cautiously into consideration when determining the amount of damage awarded.
While sidewalks are considered municipal property, the adjacent homeowner has the ultimate responsibility for clearing them of snow and ice. In Alberta, you have between 24 and 48 hours (check your municipality) to clear sidewalks after a snowfall. Failing to do so can result in a warning or a fine of up to $100.
If you are injured after falling on an icy sidewalk, you may be able to sue the homeowner. If that fall takes place on municipal property, such as a hockey arena or laneway, you may be able to make a claim against the municipality.
STATUTE OF LIMITATIONS IN ALBERTA
In law, there is a concept known as the statute of limitations. This puts a time limit on when you can file a lawsuit.
There is also a big difference between filing a claim against a homeowner or a municipality. If you fall on a sidewalk in front of a private residence, you can wait up to two years to file your claim. However, if you are filing a lawsuit against a municipality, you must do it within 21 days. There are three exceptions to this rule: if death resulted from the accident; if you have a reasonable excuse for failing to notify the municipality and the municipality is not disadvantaged by the lack of notice; or if the municipality waives the notice requirement (in writing).
It is prudent to take legal action as quickly as you can. We are here to help if you have questions about time limits.
SOME INJURIES ARE NOT IMMEDIATELY APPARENT
When someone falls on the ice, it is not uncommon for them to be embarrassed and get up quickly to walk away. Unless you have broken a bone or suffered a severe cut, you may also be able to continue on your way. Adrenaline may mask the initial pain of an injury. Some latent injuries may not be apparent until later, and you may suffer from soft tissue injuries, such as contusions or a concussion. It is essential not to ignore lingering pain after a fall because untreated injuries could manifest more seriously. Seek medical treatment and document your injuries.
WHY IS IT DIFFICULT TO SUE?
Courts have typically ruled that the duty of care expected from the defendant in a slip and fall case is not perfection. A plaintiff also bears responsibility for their safety. For example, in Krause v. Pittman in 2004, the Court of Queen's Bench of Alberta was told a woman delivering newspapers slipped on a grassy area of the customer's property and broke her wrist. The defendant said she was diligent in keeping the paved access to her home in a safe condition. The Court found the plaintiff failed to prove the defendant should have foreseen she would walk across the grassy area instead of the driveway to deliver the paper.
"I am satisfied that the plaintiff did not use reasonable care for her own safety. It was late, she was in a hurry, and she knew that conditions were icy from her previous deliveries. She was not looking where she was walking, and there is no evidence as to what actually caused her to suffer a fall," the Court ruled. The Court will assess whether a property owner has made reasonable efforts to maintain their sidewalks and walkways in winter.
In Hannam v Medicine Hat School District No. 76, the Court of Appeal of Alberta was told a woman dropping off her daughter at school fell and broke her ankle. The accident occurred while the walkway was being sanded.
"The unfortunate accident occurred at around 8:45 a.m. A chinook was blowing in. The air temperature was around the freezing point and warming. The sidewalk was slippery. The custodian sanded it while Ms. Hannam was walking behind him. She slipped," the Court ruled. "Under the circumstances, there is nothing more the Medicine Hat School District could or should have done to make the sidewalk any safer for Ms. Hannam and other sidewalk users."
It can be challenging to win a claim against municipalities afforded certain protections under the Municipal Government Act. The municipality must be grossly negligent to be found liable for an injury caused by snow, ice, or slush on roads or sidewalks. It must be shown the municipality was aware of the hazard and failed to act.
That doesn't necessarily mean a municipality cannot be sued. Recently the Supreme Court of Canada ruled a B.C. woman's lawsuit against the City of Nelson could be heard. In City of Nelson v. Taryn Joy Marchi, Court was told the streets had been plowed after a January 2015 snowstorm. A woman decided to walk over a snowbank to get from her car to the sidewalk but fell through the snow and seriously injured her leg.
The woman argued the city should have left openings in the snowbanks to allow for safe passage. At the same time, the municipality contended that their snow clearing procedure was a core policy decision, and they were not liable for damages. The Supreme Court disagreed, allowing the woman to pursue her lawsuit.
WHAT IF I AM INJURED IN A WINTER SLIP AND FALL
The facts determine success in any case, so the evidence you collect is important. If you are injured after a fall, you should seek whatever medical treatment is necessary as soon as you can. If it is possible, you should start collecting evidence immediately. If someone witnessed your fall, ask if they will make a statement. If you need immediate medical care, ask for a phone number where you can reach them later—document what happened while it is fresh in your mind. Take photos of the area where you fell. This should be done as soon as you can since weather changes can affect the condition of the scene. If you cannot do it, ask someone to take photos for you.
AFTER AN ACCIDENT, CONTACT US
A personal injury lawyer can help guide you through your options and help you obtain the compensation you need to help you recover from any injuries. They can also make sure that your insurance company does not attempt to limit the compensation that you are owed. Schedule your Free Consultation by calling 1 (403) 930-8594 or send a message to kantor@kantorllp.ca. We will represent you on a contingency fee basis, so we do not get paid for our time and attention until we settle.