The decision is Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891. It is available at:
http://www.canlii.org/en/on/onca/doc/2014/2014onca891/2014onca891.html
The introductory paragraphs are below.
Stephen
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[1] This case is about whether a municipality met its statutory duty to keep one of its roads in a reasonable state of repair. By any measure, it is a sad case.
[2] On a January night in 2007, 16-year-old Andrew Fordham drove from one friend’s house to another. He took a route through Dutton-Dunwich on rural roads that were unfamiliar to him. He came to an intersection with a stop sign. As he saw no approaching cars, he ignored the stop sign and drove through the intersection at or near the speed limit of 80 km per hour.
[3] Unfortunately the road Fordham was driving on curved to his right just after the intersection. In trying to navigate the curve, he lost control of his car and crashed into a concrete bridge abutting the road. He suffered brain damage and has no memory of the crash.
[4] Fordham sued the municipality of Dutton-Dunwich for non-repair of the road. He claimed Dutton-Dunwich had breached its statutory duty because it had failed to post a checkerboard sign warning of the change in the road’s alignment.
[5] The trial judge agreed. She held that “[c]learly, it is a local practice in this rural area for drivers to go through stop signs if they consider it safe”, and “[o]rdinary rural drivers do not always stop at stop signs and the defendant knew that.” In her opinion, the change in the road’s alignment was a “hidden hazard”. Thus, she found “that the circumstances of this intersection require more than a stop sign to give ordinary ‘rural’ motorists reasonable notice of [a] potentially catastrophic hazard ahead.” But the trial judge also found Fordham negligent because he had failed to stop at the stop sign. She concluded that both the plaintiff’s failure to stop and the defendant’s failure to install a warning sign had caused the crash. She apportioned liability for Fordham’s damages equally: 50 per cent to the plaintiff and 50 per cent to the defendant.
[6] Dutton-Dunwich appeals. The principal question on the appeal is this: Did the trial judge misapply the test for assessing a municipality’s statutory duty of repair? I conclude she did, and therefore the judgment against the municipality cannot stand.
[7] A municipality’s duty of repair is limited to ensuring that its roads can be driven safely by ordinary drivers exercising reasonable care. A municipality has no duty to keep its roads safe for those who drive negligently. Running a stop sign at 80 km per hour is negligent driving. The undisputed evidence is that the road Fordham was driving on posed no hazard to a driver who stopped at the stop sign, or even to one who slowed to 50 km per hour at the intersection.
[8] The trial judge’s finding that “[o]rdinary rural drivers do not always stop at stop signs” has some modest support in the evidence, in that some rural drivers will not always come to a full stop at a stop sign. But there is no credible evidence that ordinary rural drivers go through stop signs at or near the speed limit. More important, the trial judge’s finding is legally irrelevant. There cannot be one standard of reasonable driving for “rural drivers” and another for “city drivers”. There is but one standard of reasonable driving. That standard requires drivers to obey traffic signs. Thus Dutton-Dunwich had no duty to install an additional sign on its road.
[9] I would allow Dutton-Dunwich’s appeal, set aside the judgment at trial and dismiss the action against it.
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Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433
Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433