What responsibility does a municipality have to post a sign on a
dangerous curve on a lightly traveled rural road?
Canada’s Supreme Court answered that question in its recent decision,
Housen vs. Nikolaisen. The facts were straightforward. As a result of a
single vehicle accident on a Saskatchewan rural road July 18, 1992,
Housen, a passenger in the vehicle, became a quadriplegic.
The accident occurred at a dangerous curve. It was shielded by bush and
required a sharp right turn immediately followed by a left turn. It
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was estimated that approximately five vehicles a day traveled the road.
Four accidents had been reported on this road in the previous 12 years.
Before the accident, N, the driver, and H had been drinking. The
driver’s alcohol level was estimated between .18 and .21 at the time
of the accident, though the trial judge concluded that he was “not
driving recklessly.”
A light rain was falling. N had driven over the road in question on
three occasions in the preceding 24 hours.
The law requires that roads be kept in a reasonable state of repair.
The argument on behalf of H was that failure to post a sign on a
dangerous curve meant the municipality had failed in its duty, properly
maintain the road. Saskatchewan’s Rural Municipality Act requires that
before a municipality can be found to have breached its duty to it must
be shown that it knew or ought to have known of the disrepair of its
road.
Prior to the trial, the parties agreed that H’s damages were $2.5
million. At issue was who was responsible. The trial judge found N to
be 50 percent at fault. H was found to be 15 percent at fault for
accepting a ride with N. Finally, the judge attributed 35 percent of
the fault to the municipality for failing to place a warning sign on
the curve. The Saskatchewan Court of Appeal found the municipality was
not in breach of its duty.
The Supreme Court disagreed, and in a 5-4 judgment restored the trial
decision. The majority found the trial judge was correct in finding
that the curve constituted a hazard. The court said that a prudent
municipal councillor ought to be aware of the hazard.
“Municipal councillors are elected for the purpose of managing the
affairs of the municipality. This requires some degree of study and of
information gathering, above that of the average citizen of the
municipality,” the Supreme Court said.
While it said prior accidents on this road did not mean that the
municipality knew the road was a hazard, “they should have caused the
municipality to investigate Snake Hill Road, which in turn would have
resulted in actual knowledge.”
This judgment means that municipalities must pay attention to their
roads, as they may face more liability claims in the future.
It can also be suggested that this case involved a unique set of
circumstances and the result only applies when there is a dangerous
curve.
Since the accident, Saskatchewan has implemented a no-fault insurance
scheme, though it will allow people to opt out in the future.
In a similar case in Manitoba, MacMillan vs. RM of Thompson, where
there is a no-fault plan, the court ruled that all injury claims
arising out of the operation of a vehicle are covered by no fault,
regardless of whether the claim arose out of fault of the claimant,
another driver or a municipality.
Don Purich is a former practising lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
