28/07/2020 by Tony Poland, Advocate Daily.com Associate Editor
Suing the city after an accident - Part 1
(originally posted at AdvocateDaily.com)
In the first instalment of a two-part series, Kamloops personal injury lawyer Matthew Ford discusses how filing a negligence claim against a city or municipality can differ from taking action against a private citizen.
Suing the local government for negligence after a slip and fall comes with its challenges, Kamloops personal injury lawyer Matthew Ford tells AdvocateDaily.com.
Ford, partner with Cates Ford Soll & Epp, says a city or local municipality has policies in place to take care of such things as road and sidewalk maintenance that offer protection not provided to the average citizen.
“Private owners don't get to raise the policy defence, so that's why it's harder to be successful against cities,” he says.
Ford says there are two ways to attack a claim against a city.
“You can argue that they didn't follow their policy and therefore that's negligence,” he says. “But they can say their policy is a higher standard of care than is actually required and even though they didn't follow their policy, they didn't have to because it is set at that higher standard."
The other route to consider would be to scrutinize the city’s policy, Ford says, but “that’s where case law is strongly in favour of the municipality.”
Using snow removal as an example, he explains that although a claimant can argue work wasn’t done in a timely manner, the city can counter that they were doing the best they could.
“They can hide behind the policy argument saying, 'You don't like how quickly we removed the snow but we don't have the resources to do it any faster,'” Ford says. “They have determined their policy for snow removal based on the existing resources. Some of those resources also go to repairing roads and maintaining parks.”
He says arguing that the policy “is unreasonable” is possible, but can be difficult.
“You're going to have to dig into the financial resources of the municipality and try to figure out how they're allocating money and resources,” Ford says.
He says the claimant could then argue the city is “spending too much money on maintaining parks” when they could be using it for snow removal, for example.
“That’s a complicated piece of litigation,” Ford says. “You need an expert, so the cases are difficult.”
He says when people contact the city after being injured on public property they might get a letter back from an adjustor who has given the incident a “cursory look.”
“They say, ‘We have abided by our policy and that's all we have to do. It’s unfortunate that you were hurt, but we are not a public insurer,'” he says. “I think many people would just take that letter and say, ‘Well, I guess they're not going to help me’ and that's the end of it.”
Ford says knowing how to look at the evidence provided by the city after a claim has been made is also important.
While a claimant might receive a first-hand account of the steps a private citizen has taken to ensure the safety of their property prior to the incident, he says the city may send its information through an adjuster or a lawyer.
“They will say the snow was shovelled so they have complied with their policy, but you don't get any details as to who actually did this shovelling, or truly when it was shovelled,” Ford says.
He says he has found that the information provided is sometimes “just incorrect.”
“They look at a few documents and say from their interpretation the snow was shovelled at the site in question,” he says, “Then we look at the same documents and find the site was patrolled but there's no record the snow was actually removed.”
He says that’s why it’s important to retain a lawyer.
“It's about scrutinizing the evidence that the city’s providing to you because it's not first- or even second-hand. It's usually several steps away.”