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Accumulated Risk: The Dangers of Negligent Road Maintenance

What You Need to Know

The Alberta Court of Queen’s Bench held that the City of Calgary (the “City”) bore some liability for an accident caused by negligent road maintenance. This decision highlights the legal exposure that can arise when a municipality fails to respond to the risks created by accumulated road debris.

Facts

On February 8, 2014, a Ford F150 travelling westbound on Glenmore Trail between Deerfoot Trail and Blackfoot Trail lost control after encountering icy conditions (the "Accident"). The vehicle launched over the median and collided with the Pyke's vehicle. As a result of the Accident, one occupant of the Pyke's vehicle died, and three others suffered serious injuries. 

In their claims against the City, the Pykes alleged:

  • The City made an unsafe road available to the public (i.e. the road did not meet applicable safety engineering standards).
  • The City failed to keep the road in a reasonable state of repair by allowing dirt and gravel to build up around the median, thereby allowing the median to function like a ramp that could launch approaching vehicles into oncoming traffic.

The Pykes advanced these claims as common law negligence claims and statutory claims under section 532 of the Municipal Government Act, RSA 2000, c M-26 (the "MGA"). Section 532 of the MGA reads as follows:

Repair of roads, public places and public works

532(1) Every road or other public place that is subject to the direction, control and management of the municipality, including all public works in, on or above the roads or public place put there by the municipality or by any other person with the permission of the municipality, must be kept in a reasonable state of repair by the municipality, having regard to

  1. the character of the road, public place or public work, and
  2. the area of the municipality in which it is located.

While the parties did not ask the Court to quantify or allocate liability for the Accident, the Court considered whether the City could be subject to any legal exposure. 

Analysis 

Nature of the Pyke's Claims 

The Court identified the types of claims that the Pykes could bring against the City, holding that the City's common law duty and statutory duty were substantially co-extensive. The Court noted that while section 532 of the MGA creates a statutory cause of action for failure to repair road infrastructure, section 528 of the MGA bars "non-negligence" (e.g. nuisance) actions against municipalities arising from the use of roads. Considering how similar statutory obligations have been interpreted, the Court found that the Pykes could advance their claims under section 532 of the MGA. The Court also found that the common law duty of a public authority that owns or controls public roads to road users is well-established, affirming that "the question of whether a road is reasonably safe includes an assessment of the permanent features of the road and the upkeep of the road."

Policy Considerations 

Having found a prima facie duty of care under the first step of the analysis set out in Anns v Merton London Borough Council, the Court considered whether policy considerations could negate the City's duties. The Court held that the question of whether an unsafe road was a result of a policy choice or an operational decision or omission was not relevant to the existence of the statutory duty to keep roads in a reasonable state of repair. The Court also held that this question was not relevant given the overlapping nature of the City's common law duty and statutory duty. In the alternative, the Court held that the implementation of the inadequate median barrier occurred at an operational level, and the ongoing failure to address its shortcomings while continuing to invite the public to use the road was an operational omission without a reasonable explanation.

Applicable Standard of Care

The Court found that the standard of care for a busy urban highway like Glenmore Trail was high. However, the Court did not require the Pykes to provide expert evidence that the median presented a safety hazard, holding that the standard of care could be established by "indicators of reasonable conduct including professional standards and internal policy." The Court found that the City's policies clearly evidenced the City's duty to ensure that its roads, including medians and median barriers, were reasonably safe – including yearly cleaning and maintenance of medians. 

Cause of the Accident

The Court found that although there were intrinsic flaws in the design of the median and median barrier, these flaws did not cause the Accident. Instead, the Accident was caused by the City's failure to remove 27 years' worth of accumulated dirt and gravel around the median. The Court held that section 532(6) of the MGA did not relieve the City from liability because City knew or ought to have known that the dirt and gravel created a safety hazard. 

In reaching this determination, the Court noted that collision reports maintained by the Calgary Police Service showed an increase in the number of accidents involving vehicles becoming high-centred on or launching over the median on the section of Glenmore Trail near the Accident, including a similar fatal accident that had occurred in the previous year.

Limitations Considerations

The Court rejected the City's argument that the Pyke's claims were limitation barred, holding that the limitation period for their claims started when their injuries occurred. In reaching this conclusion, the Court found that the City's invitation to the public to use Glenmore Trail was "open-ended," and its associated duty to provide a reasonably safe road was "evergreen."

Other Considerations Under the MGA

The Court also addressed various other potential bars to the Pyke's claims under the MGA. In considering the proper approach to interpreting the relevant sections of the MGA, it held that "the statutory imposition of liability for failure to repair roads and road infrastructure promotes public safety consistent with the overarching purpose of the MGA." The Court emphasized that provisions granting municipalities power to promote public safety should be interpreted broadly, and provisions exempting municipalities from liability for endangering public safety should be interpreted narrowly.  

The Court held that a narrow reading of section 530 of the MGA does not exempt municipalities from liability for failing to keep roads and public places in a reasonable state of repair. It found that section 530 applies to municipal property other than roads and public places, which a municipality may have the power or responsibility to inspect or maintain. 

The Court also held that while section 533 of the MGA permits municipalities to choose between different types of median barriers that are appropriate for use, it does not permit them to negligently install road infrastructure or allow it to fall into a state of disrepair through the incidental accumulation of dirt and gravel. 

Conclusion

The Court found that the City bore some liability for the Accident. The City had failed to keep the median and median barrier in a reasonable state of repair under its common law duty and its statutory duty under section 532 of the MGA. The parties did not ask the Court to quantify or apportion liability for the Accident.

Takeaways

This decision affirms that municipalities can face liability for accidents caused or contributed to by their failure to maintain their roads in a reasonable state of repair. It emphasizes that neglecting regular maintenance activities like clearing accumulated dirt and gravel can have legal consequences when such failures endanger public safety.

Field Law’s insurance group has helped many insurers evaluate claims where questions regarding liability arise. If you have questions about how failing to respond to risks could impact you or any of your files please contact Brian FilipsLauren Webster in Edmonton, Dan Downe, QC in Calgary, or any member of Field Law's Insurance Practice Group.

 

Link to decision: Pyke v Calgary (City), 2022 ABQB 198