Duty of Municipality to the “Ordinary” Driver: Fordham and Ferguson
Last year, I reviewed the decision of the Ontario Court of Appeal in Morsi v. Fermar Paving Limited. Morsi provided a reminder that in municipal road authority cases, it is not enough to establish negligence on the part of the road authority; a plaintiff must also establish that the negligence presents a risk to a driver exercising ordinary care. In Morsi, the plaintiff drove recklessly at over twice the speed limit along the disputed stretch of road before losing control of his car. The experts called at trial were in agreement that had Mr. Morsi operated his vehicle at or modestly above the posted speed limit, he would have been able to successfully negotiate the section of the road where he lost control. Based on this finding, the Court of Appeal held that Mr. Morsi’s reckless conduct absolved the defendants of liability.
Two decisions of significance have been released following Morsi, which provide some guidance as to how trial judges will apply the causation analysis dictated by the Court of Appeal in Morsi.
Fordham v. Dutton–Dunwich
Fordham v. Dutton Dunwich arose from a single vehicle collision. The plaintiff, Andrew Fordham, was 16 years old and held a G2 driver’s licence. He ran a stop sign on a rural, gravel road at an intersection where yield signs had recently been replaced by 4-way stop signs. The intersection involved a sharp 8.9 metre offset that a driver would need to prepare for 2.5 to 3 seconds ahead of time. Because Mr. Fordham did not stop at the intersection, he lost control of his vehicle while attempting to manoeuver through it. He had a blood alcohol concentration of between 29.6 and 53.6 mg/100 mL at the time of the collision and later pleaded guilty to failing to stop at a stop sign. Mr. Fordham sued the municipality for failing to warn of the change in road alignment, based on the requirement in the Ontario Traffic Manual that a checkerboard sign be in place if the intersection is considered an offset. The defendant argued that, (1) the intersection was not an offset and (2) even if it was, it did not pose an unreasonable risk of harm to an ordinary motorist approaching the intersection because of the stop signs; there was no dispute that, had Mr. Fordham stopped at the stop sign, he would have been able to manoeuver safely through the intersection.
Evidence was presented that indicated that it was normal practice for rural drivers to proceed through intersections without stopping when they could see clearly that there was no traffic coming. The defendant relied heavily on Morsi and argued that Mr. Fordham’s driving was “reckless.” Madam Justice Morissette disagreed. In doing so, she cited the following factors:
- He was not driving at an excessive speed
- He had never driven on the road before and had no warning that the alignment of the road was about to change.
- He had a visible stop sign but likely saw that there was no oncoming traffic and drove through, not suspecting a change in the alignment of the road.
- Ordinary rural drivers do not always stop at stop signs.
Justice Morissette also pointed to the following facts regarding the defendant’s conduct and the state of the intersection:
- The actions of rural drivers who regularly failed to observe regulatory signs was a significant enough issue that it caused numerous complaints to Council and prompted it to replace all yield signs with stop signs.
- The defendant knew that ordinary rural drivers do not always stop at stop signs.
- Proper checkerboard signage was inexpensive at $800
- The defendant’s practice at other similar intersections was to place checkerboard signs in conjunction with stop signs. This was to protect people from going through the stop sign.
- The hidden and unknown change in road alignment was obscured from view and constituted a “hidden hazard.”
Justice Morissette concluded that the circumstances of the intersection required more than a simple stop sign to give ordinary rural motorists reasonable notice of a potentially catastrophic hazard ahead. She accepted the plaintiff’s submission that it was reasonable to infer that Mr. Fordham would have reduced his speed if he had been informed of the change in alignment at the intersection. She apportioned liability 50/50 between the plaintiff and the defendant.
Ferguson v. Brant (County)
On April 2, 2005, 17 year-old Jesse Ferguson was driving westbound on Scenic Drive in Brant County. There was snow and slush on the road. At some point, Scenic Drive curved sharply to Mr. Ferguson’s right. He failed to navigate that curve. The road did not have a “sharp curve” sign which was called for by the Ontario Traffic Manual. Experts for the plaintiff and the defendant disagreed on whether the existing signs warning of a “winding road” and a “y intersection” were sufficient.
Mr. Justice Kent reviewed the applicable authorities, including Morsi and concluded that a municipality owes a duty to keep the roadway in a reasonable standard of repair so that users exercising ordinary care may travel on it safely. The municipality does not owe such a duty to a negligent driver. He quoted the following applicable provision from the Ontario Traffic Manual:
In situations where a speed reduction is required to negotiate a curve, it is important that the indicated advisory speed be both safe and realistic. An advisory speed that is too high compromises safety by impacting vehicle stability, while one that is too low may also compromise safety by lowering driver compliance. If the general driver perception is that advisory speeds can be exceeded by a significant margin without risk, problems may arise where curves are severe and reduced safety margins apply.
He held that the signage on the relevant stretch of Scenic Drive was insufficient for the following reasons:
- It allows drivers to conclude that Scenic Drive and its curves could be safely negotiated the posted speed limit of 60 km/h;
- they allow drivers to conclude that the accident curve with something less severe than a sharp curve; and
- it prevented drivers from knowing that a safe speed to navigate the accident was 20 km/h less than the posted speed limit.
Based on the evidence of a forensic engineer and the police officers, Justice Kent concluded that Mr. Ferguson was driving at or slightly above the posted speed limit of 60 km/h. Given the road conditions, and in particular the fact that the roads were snow-covered, it was incumbent on Mr. Ferguson to drive at a lower speed. Justice Kent found that Mr. Ferguson was contributorily negligent. He fixed the defendant’s liability at 55% and the plaintiff’s degree of contributory negligence at 45%.
Both Fordham and Ferguson suggest that trial judges will not expect a driver to strictly comply with the rules of the road in order to find that the driver was exercising ordinary care. Instead, if plaintiffs can show that they were driving in a manner consistent with the driving habits of other motorists along the same stretch of road, they will be entitled to recover damages if the municipality in question has not met the requisite standard of care. Indeed, in both cases the plaintiffs were negligent in their operation of their vehicles, but the trial judges nonetheless found that the degree of negligence was in keeping with what one would expect of a driver exercising ordinary care.