In Fordham v. Dutton-Dunwich, the Court of Appeal reiterated that municipalities are only obliged to maintain roadways so that ordinary drivers can travel on them safely.
The plaintiff in this action was 16 years old when he was involved in a single vehicle accident while driving on a rural road which was unfamiliar to him. He came to an intersection with a stop sign, but ignored it and instead drove through the intersection at about 80 km/hour, the speed limit in the area. The road he was driving on curved to the right just after the intersection. He lost control and crashed into a concrete bridge abutting the road, suffering serious injuries.
The plaintiff sued the municipality for non-repair of the road, specifically alleging that the municipality had not met its obligations to maintain the roadway by failing to post a checkerboard sign warning of the change in the road's alignment.
At trial the Court apportioned liability equally as between the municipality and the plaintiff. The Court accepted that it was the local practice in "this rural area for drivers to go through stop signs if they consider it safe." The curve in the road was a hidden hazard, and more than a stop sign was required to give ordinary rural motorists reasonable notice of the danger ahead. The municipality appealed the decision.
In a unanimous decision, the Court of Appeal allowed the municipality's appeal and dismissed the plaintiff's action. The Court of Appeal reiterated that a municipality's duty is to maintain roadways so that they can be safely driven on by ordinary drivers exercising reasonable care.
In this case, there was undisputed evidence that the road posed no hazard to drivers who stopped at the stop sign or even drivers who slowed down to 50 km/hour at the intersection. Accordingly, an ordinary driver exercising reasonable care would not have had difficulty navigating the curve in the road.
The Court of Appeal also rejected the plaintiff's argument that the municipality was required to erect a sign warning of the curve in the road. Although the Ontario Traffic Manual recommends checkerboard warning signs for a "sharp change in road alignment," the recommendation does not establish a legally enforceable standard of care for civil liability. Although the guidelines in the Ontario Traffic Manual may be a consideration, the overriding issue is whether a roadway posed an unreasonable risk of harm to reasonable drivers. In this case, the Court of Appeal held that it did not.
The upshot of this case is that, in maintaining the roadway, municipalities must account for ordinary drivers who are not perfect and occasionally make mistakes. What may be an issue in future cases is determining whether a driver has simply made some mistakes or whether a plaintiff's driving is so bad that it falls outside the realm of "ordinary" and imperfect driving.
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