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Suing for Damage Caused By Potholes Includes Breach of Municipal Responsibility to Maintain Public Roadways
Question: Can the City Be Held Liable for Car Damage Caused by a Pothole?
Answer: The legal responsibility of a municipality to maintain roadways can result in liability if poor road conditions, such as potholes, cause damage to vehicles. Under Municipal Act, 2001, S.O. 2001, Chapter 25, local governments must keep roads in a reasonable state of repair. Special rules apply for claims against municipalities, including potential notice requirements, making it vital to act quickly if seeking compensation. For assistance, contact Lippa Legal Services in Vaughan, Stouffville, and surrounding areas to navigate these complex claims efficiently.
If a Pothole Damages My Car, Can I Sue the City?
Generally, When a Poorly Maintained Road Causes Damage a Local Municipality May Be Liable As Laws Require the Municipality to Reasonably Perform Maintenance. Special Rules For Suing Government or Municipalities May Apply.
Understanding the Legal Duties Upon Municipalities For the Maintenance and Repair of Roads Including Potholes
Road hazards, such as potholes, pose significant risk of causing injury to persons or causing damage to vehicles. Although the majority of road hazard incidents involve minor consequences, some incidents do involve serious damage to vehicles and may also involve severe injuries. Beyond potholes, road maintenance issues may also involve signs per The Queen v. Jennings et al., [1966] S.C.R. 532; guardrails, trees per Swinamer v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445, among other things.
The Law
The legal duty imposed upon the municipality to maintain the roadway is enshrined within section 44 of the Municipal Act, 2001, S.O. 2001, Chapter 25 where it is stated:
Maintenance
44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Liability
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Defence
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
Regulations
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
General or Specific
(5) The minimum standards may be general or specific in their application.
Duties on Repair of Roads
The statutory duties imposed upon a municipality were reviewed and summarized by the Court of Appeal in the Chiocchio v. Hamilton (City), 2018 ONCA 762, case wherein it was stated:
[8] Section 44 of the Municipal Act, S.O. 2001, c. 25, requires a municipality to keep highways under its jurisdiction “in a state of repair that is reasonable in the circumstances, including the character and location of the highway”.
[9] In Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 (CanLII), 70 M.V.R. 6, at paras. 28-29, Laskin J.A. described the ordinary reasonable driver standard, the standard of care which governs a municipality’s duty of highway repair. As described by Laskin J.A., a municipality is required to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. Ordinary reasonable drivers are not perfect; they make mistakes. However, a municipality's duty does not extend to remedying conditions that pose a risk of harm only because of negligent driving.
Extent of Duty to Repair
As shown in Chiocchio, the duty imposed upon the municipality is to act with reasonableness rather than to act perfectly and that maintenance of the roadway needs to performed to the extent of preventing or correcting conditions that may expose an ordinary driver, who is presumed as capable of making driving errors, to unreasonable risk; however, the duty as legally imposed upon a municipality without a requirement to prevent or correct conditions that may cause risk to a negligent driver. This viewpoint that a municipality is obligated to maintain the roads to a standard of reasonableness for use by an ordinary driver, rather than negligent driver was also recently articulated in Smith v. Safranyos, 2018 ONCA 760 whereas it was said:
[31] “Non-repair” will be established if the plaintiff proves “on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair”: Fordham, at para. 26. The applicable legal test is, “was the road at the material time sufficiently in repair that those users of the road, exercising ordinary or reasonable care, could use it in safety”: Deering v. Scugog (Township), 2010 ONSC 5502 (CanLII), at para. 100, affirmed 2012 ONCA 386 (CanLII), leave to appeal from C.A. refused [2012] S.C.C.A. No. 351. In adopting the Deering standard of care test, Laskin J.A. elaborated in Fordham, at para. 28, that “ordinary reasonable drivers are not perfect drivers; they make mistakes”, but he cautioned, at para. 29, “a municipality’s duty of reasonable repair does not extend to making its roads safer for negligent drivers.”
Further to the possibility that a municipality may be found liable for an incident involving automobiles due to a failure to properly maintain a roadway, a municipality may also be found liable for incidents that involve a pedestrian; Bellefleur v. London (City),(2002) 33 M.P.L.R. (3d) 252, a bicyclist; Danco v. Thunder Bay (City), (2002) 21 M.P.L.R. (3d) 18, or even a person upon roller blades; Winter v. London (City of), 2002 CanLII 15580. Essentially, a municipality owes a duty to all persons, automobile drivers or others, who may be users of the roadway.
Notice Period
For persons, such as owners of vehicles, among others who suffer injuries or other losses and are considering bringing a legal action against a municipality for the failure to properly maintain roadways, there are unique litigative concerns that may apply including special notice requirements as well as short limitation periods within which to provide the special notice. These unique concerns are provided within the Municipal Act, 2001 as follows:
Notice
(10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to,
(a) the clerk of the municipality; or
(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.
Exception
(11) Failure to give notice is not a bar to the action in the case of the death of the injured person as a result of the injury.
Same
(12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.
Conclusion
The statutory law, being the Municipal Act, 2001, quite clearly imposes a duty upon municipalities to reasonably maintain roadways. The common law cases subsequently articulate the standard of measure for the reasonableness required as being sufficient to make the roads safe for the diligent driver rather than the negligent driver.