MULTI-MILLION DOLLAR JUDGMENT FOR WINTER DRIVING ACCIDENT

Posted May 1, 2013

Following a lengthy trial against the County of Brant, Thomson Rogers personal injury lawyers David F. MacDonald, Michael L. Bennett and Robert M. Ben recently obtained a multi-million dollar judgment for a client who suffered a serious brain injury during a winter driving accident.

Seventeen-year-old Jesse Ferguson was driving an SUV at night along a snow covered rural road in the County of Brant. He was travelling at the posted 60 km/h speed limit. However, unbeknownst to him, this was in excess of the critical speed of a sharp curve in the road (critical speed being the speed at which a vehicle will lose lateral control on a given curve). Jesse’s SUV left the roadway at the curve, striking a tree. Jesse sustained a disabling brain injury as a result.

Jesse sued the County for breaching its obligations to maintain the road in state of repair; namely, that it failed to install an appropriate sharp curve and reduced speed advisory sign, and that it failed to maintain the road free of snow and ice. Instead there was a “winding road” and a “Y” intersection sign posted ahead of the curve. The trial judge concluded that the case turned entirely on road signage and made no findings on the winter road maintenance issue except to say that there was certainly room for improvement in the County’s weather monitoring, patrolling and salting practices.

The trial judge did find that the County was under a positive duty to inspect its roadways to ensure appropriate signage was in place, so that users of the roadway, exercising ordinary care, could travel upon it safely. The County’s duty was enhanced given the evidence that the nature and character of the roadway and its surrounding neighbourhood had undergone a change (the accident happened on a rural road passing through a growing subdivision, which brought with it increased vehicular traffic).

The expert evidence for the plaintiff was that the safe advisory speed for the curve was, by reference to the Ontario Traffic Manual (“OTM”), 40 km/h and that a sharp curve and a reduced speed advisory sign were required. The trial judge acknowledged that the OTM is merely a guideline for municipalities and not a legally enforceable standard (even where a municipality enacts a bylaw adopting the guidelines, which was not the case here), but nonetheless found that the County should follow the guideline unless it has some compelling reason not to do so.

On the facts of this particular case, the County had assumed jurisdiction over the road and the existing signs approximately six years earlier upon amalgamation of a number of townships. Over that six-year period, it did not take any steps to monitor existing signage or consider whether updates might be required, despite residential growth and increased traffic in the area. In addition, chevron signs were placed at a nearby sharp curve, yet the County gave no consideration as to whether enhanced signage was warranted at the curve where Jesse was injured. The trial judge found that the County ought to have known that the curve required consideration in light of the OTM. In the court’s view, the County had “more than enough time” to study and effect compliance with the OTM but failed to do so.

The trial judge found that the existing signs led drivers to believe that the curve was something less than a sharp curve and one that could be safely negotiated at 60 km/h. The signage in place prevented drivers from knowing that a safe speed to navigate the curve was 20 km/h less than the posted speed limit. The County allowed substandard signage to remain in place for too long. The trial judge noted that, after the accident, the County installed a 40 km/h speed advisory sign at the accident curve and the posted speed limit along the road was reduced to 50 km/h. The trial judge concluded that, for the County’s failure to place the appropriate sign, Jesse could and would have reduced his speed sufficiently to successfully negotiate the curve. The County was held to be 55 percent liable for the accident.

The judgment is presently under appeal by the County, with the plaintiff cross-appealing on the assessment of the municipality’s negligence.

View PDF version: Accident Benefit Reporter | Volume 14, Issue 1 | May 2013

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