City Not Liable for Icy Boulevard

The City of London has successfully defended a slip and fall action that occurred following a winter storm.  In Bondy v. London (City), [2013] O.J. No. 1281 (S.C.J.), the plaintiff slipped and fell on the paved portion of the boulevard abutting the city sidewalk, which was used to access her driveway. The night before the plaintiff fell there was a heavy freezing rain storm, which continued throughout the night and into the morning.  Schools were closed and radio announcements recommended citizens stay off roads and sidewalks. The adjacent property owned salted the sidewalk but not the boulevard. The City decided to call in its sidewalk equipment operators at midnight and they were deployed at 4:30 a.m.  In the area of the plaintiff's fall, operators were deployed from 7:30 a.m. to 5:30 p.m., with the route taking 12-14 hours to complete.

The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality.  Justice Gorman held that the boulevard was not part of the untravelled portion of the highway.  In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.

Ultimately, Justice Gorman held that the City had met its standard of care.  It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?

The Agony of the Collision

A recent motion decision dealt with the standard of care in emergency situations.

In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn.  An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident.  Unfortunately, the other driver also swerved and they collided.

Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle.  Justice Spence reviewed three formulations of the test for negligence in an emergency:

1.  Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2.  Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision.  He is not negligent for failing to adopt the best course of action in the light of hindsight;
3.  Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.

Justice Spence concluded:

[39]  The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.

Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.

Yaz and Yasmin Settlements in Wisconsin

Our recent blog post on Wisconsin Yaz and Yasmin cases at our firm web site: Wisconsin Yaz and Yasmin Settlements

Wisconsin Personal Injury Lawyer

Gruber Law Offices Reviews on Google+

The other day I was working with our Internet people and had to put time into our Google+ page, Pasternak & Zirgibel S.C. - Wisconsin Personal Injury Lawyers.

While there, I perused various Wisconsin personal injury attorneys' Google+ pages and came across a page for Gruber Law Offices, LLC, which, as I referred to in the previous post, currently saturates Milwaukee with personal injury law firm advertising.  Based on the reviews I read on Gruber Law Offices Google+ page, it seems the firm ought to refocus its efforts.  In fact, the two Gruber reviews at Google+ are so horrible and make awful allegations that I will not reprint them.  For the record, I have no personal experience with that law firm other than what I see on T.V.  I'll also say that I've seen Wisconsin injury lawyers go the other way and load up review sites with nothing but glowing reviews (if it sounds too good to be true, it is). 

Like all forms of opinion and advertising, take this Gruber thing with a grain of salt.  Instead, any consumer hunting for a Wisconsin lawyer ought to use independent sources like Best Lawyers in America (Wisconsin Best Lawyers), Martindale-Hubbell Peer Review Ratings (AV® Preeminent™), and Super Lawyers (Wisconsin Super Lawyers).  For a personal injury attorney, also make sure that the lawyers are active members of The American Association for Justice and Wisconsin Association for Justice.

Wisconsin Personal Injury Attorney
Addendum:  It looks like after this post Gruber Law Offices went to great lengths to get "rave" reviews.  It's interesting for sure, and pretty consistent with what we all know about the web, you get what you pay for.  That said, my last paragraph definitely still stands.  See also my recent post on personal injury mills. 

Habush v. Cannon: The Final Chapter?

Wisconsin's Court of Appeals has issued an opinion, Habush v. Cannon - Ct of App decision.  I'm not sure whether this will be the end of the litigation or whether it will go to the Wisconsin Supreme Court, but it seems to me that lawyer advertising in Wisconsin is the wild, wild, west.  Then again, it seemed that way to me when I first arrived and saw Habush, at the time, saturating t.v. with advertising.  Today, in the Milwaukee area at least, it's another firm, Gruber Law Offices, but that firm will be the topic of the next post.

Causation and Insurance Broker Negligence

The Ontario Court of Appeal recently commented on one of the leading cases pertaining to insurance broker negligence, Fletcher v. Manitoba Public Insurance Company, [1990] 3 S.C.R. 191.  

In Zefferino v. Meloche Monnex Insurance Company, 2013 ONCA 127 (C.A.), the plaintiff sued his insurance company alleging that the insurer should have offered him optional income replacement benefits, and claiming a loss of IRBs which should have been available to him. The plaintiff argued that the ratio in Fletcher did not require a plaintiff to prove that the acts or omissions of the insurer caused the loss, but rather only that the insurer had a duty to inform the insured, that it breached its duty of care and that there was a gap in coverage. 

The Court of Appeal held that a plaintiff is not relieved of the normal burden of proof in an insurance broker context and must show causation.  There was no evidence to prove that Zefferino would have purchased optional insurance coverage other than a bald and self-serving assertion, and therefore his action failed.