5cm Crack in Roadway is Not Dangerous > Municipal Maintenance Standards Reviewed

In 2001, Ontario enacted the Municipal Act, 2001 and by Regulation introduced the Minimum Maintenance Standards for Municipal Highways.  The Minimum Maintenance Standards sets out responsibilities for municipalities regarding snow clearing, pothole maintenance, sidewalk maintenance and other issues.

When should a crack in the roadway be fixed?

Is a 5 cm wide crack (which is also 1 cm deep) dangerous?  What if that road had no sidewalks and no crosswalk available?  If the roadway was commonly used by university students to cross the street after classes ended?

In Holmes v. Kingston (City), (2009 Ontario Superior Court), a university student fractured her foot when she tripped on a 5 cm crack in a roadway.  She sued the City of Kingston for failing to fix this crack in the roadway.  Her position was that the City knew that students were crossing this portion of the street after classes and with no sidewalk or crosswalk available, that pedestrians had no choice but to cross the road.  She advocated an increased standard of care to maintain the roadway for known pedestrian use (as opposed to simply for vehicle use).

For the Trial, the City agreed on $70,000 in damages for certain issues as having been suffered by the student.  At Trial, the student sought additional damages over the $70,000 which were denied by the City.

After review of the obligations imposed by the Minimum Maintenance Standard, the City was held not to be liable in this situation.  Mr. Justice Pedlar states in his decision:

A municipality is not obliged to maintain roadways as if they were primarily to be used for pedestrian traffic, except in the confines of established crosswalks.  Pedestrians who choose to convenience themselves by crossing a roadway primarily designed for motor vehicle traffic, excluding highly unusual circumstances, must take the roadway as they find it.

Gregory Chang
Toronto Insurance Litigation Lawyer