Bike Accidents and Municipal Liability

By Belinda A. Bain, Partner, Gowling Lafleur Henderson LLP; Erin Farrell, Student-at-Law, Gowling Lafleur Henderson LLP

Cycling is a billion-dollar industry in Canada. More than 65% of Toronto households have at least one bicycle.¹ Unfortunately, as the number of people cycling increases, so too does the number of cycling-related accidents and injuries. As a result, civil claims against municipalities increase as well. What are the legal duties of municipalities towards cyclists on roads and on bicycle trails? And what responsibilities do cyclists have to take care of their own safety?

Municipal Liability: Bicycle Accidents on Municipal Highways

A municipality has a statutory duty to maintain highways²  and bridges. In particular, Section 44 of the Municipal Act³ of Ontario provides that a municipality with jurisdiction over a bridge or highway must keep it in a reasonable state of repair or else risk being held liable for damages caused by their negligence. A condition of non-repair of a roadway can involve not only the surface of the road, but “any aspect of the road and its environs,” including the alignment of the road, obstacles on the side of the road and signage.⁴

The threshold elements necessary for a claimant to be successful in an action for damages in connection with a bicycle accident on a municipal highway include the state of disrepair of the highway⁵ and evidence that the non-repair of the highway was the cause of the accident.⁶ If these elements are met, the onus shifts to the municipality to establish that the condition of non-repair existed notwithstanding all reasonable efforts on the part of the municipality.⁷

The general standard of care that a municipality must meet in fulfilling its duty to keep a road in a state of proper repair is often cited as: “the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety.”⁸

This liability can be reduced in connection with the fault of another tortfeasor (wrongdoer)⁹ or because of the fault of the plaintiff¹⁰ under the Negligence Act.¹¹ Liability can be defeated by showing the municipality took reasonable steps to prevent a default from arising¹²; that it met the current regulated standard at the time¹³; or that the municipality did not and could not reasonably have known about the state of repair of the highway or bridge.¹⁴

In the Ontario Court of Appeal decision of Shearn v. Burlington, a child cyclist accompanied by her father intentionally moved from the safety of the sidewalk onto the grass next to the sidewalk, into a cement abutment, and fell 12 feet into a creek bed.¹⁵ While noting that the parent was conscientious,¹⁶ the court found the accident was not the fault of the municipality, since nothing in the area would have posed a problem for an average cyclist exercising reasonable care.¹⁷  Instead, the accident was a result of the “unfortunate combination of an inexperienced and incompetent bicyclist doing something quite unforeseeable.”¹⁸

Municipal Liability: Bike Accidents Other Than on Municipal Highways

Parks

The Occupiers Liability Act (OLA) governs municipal liability for accidents on property other than roadways or highways.¹⁹ Section 3 of the OLA sets out a general duty of care owed by an occupier of premises to others while they are on the premises. Reasonable care must be taken to ensure persons entering are safe from both the premises themselves and from activities carried out while there.

Recreational Trails

The duty of care described above is limited in the case of recreational trails. The OLA provides that persons entering such premises²⁰ shall be deemed to have willingly assumed all risks. In these cases, the occupier only owes the person²¹ entering the trail a duty to not create a danger with the deliberate intent of doing them harm and to not act with reckless disregard of their presence.  The rationale and objective of these sections of the OLA is to encourage landowners to allow recreational use of marked trails on their land by imposing on them a lesser duty of care.²³  This lesser duty might not apply in cases where a fee is paid for entry to the premises, or if the occupier is providing the person with a living accommodation.²⁴

Accordingly, if a trail is marked as a recreational trail, it qualifies for the more limited duty under subsection 4(i) of the OLA. In these situations, trail users, including cyclists, will be deemed to willingly assume the risk of riding on the trail. The duty the municipality owes to such a user is “to not create a danger with the deliberate intent of doing harm or damage to the person or to his or her property, and to not act with reckless disregard of the person’s presence.”

Courts have considered the meaning of “reckless disregard” under subsection 4(1) of the OLA. In the case of Cormack, the issue was whether, in all of the circumstances, a snowmobile driver had proven that a Township had acted “with reckless disregard of the presence of” the respondent snowmobiler on its property25. In examining the relevant provisions of the OLA, the court found the legislature intended that there be liability only for the intentional acts or omissions of occupiers made in reckless disregard of the safety of snowmobilers on their premises.²⁶ The court found that the phrase “act with reckless disregard” meant “doing or failing to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises, and not caring whether such damage or injury results.”²⁷

In the recent case of Herbert, the Ontario Superior Court of Justice looked at “reckless disregard” in the context of a bicycle accident on a recreational trail. The court adopted the definition of “reckless disregard” of an occupier from Cormack, and found it applicable in the context of a bicycle accident on a recreational trail.²⁸

The Herbert case is currently under appeal with no date yet set for the hearing of the appeal.  

Contributory Negligence of a Plaintiff Cyclist

Cycling by its very nature is a potentially dangerous activity, requiring physical control and good judgment on the part of the cyclist. The court in Herbert made the following observations regarding the inherently risky nature of cycling:

“It can be assumed that a cyclist accepts that there are risks associated with a recreational trail; otherwise, he or she would not ride upon the trail. Those risks/challenges may very well be part of the charm or attraction associated with the trail. Riding a recreational trail may cause a cyclist to encounter: elevations and descents, curves and straight paths, different topography and different viewpoints or lack thereof (i.e.: blind spots).”²⁹

In cases involving cyclists who do not exercise reasonable caution for their own safety, principles of contributory negligence are applicable to reduce damages to which a plaintiff might otherwise be entitled.³⁰ Even devastating bicycle accidents commonly result in a significant amount of the responsibility being borne by an injured plaintiff.

For example, in Herbert, the plaintiff was an experienced cyclist who was rendered quadriplegic on a recreational trail when he moved to the side of the trail to avoid oncoming cyclists. The plaintiff was found 60% liable for his own injuries based on evidence that he was cycling too quickly, thereby diminishing his reaction time to both the presence of the oncoming cyclist and to a deterior
ated edge of the trail.³¹

In Danco, a plaintiff’s front tire slid on a railway track, causing a serious wrist injury.³² Though the track did not conform to regulations, and the City of Thunder Bay was negligent by failing to warn the public of the known hazard, the Ontario Superior Court of Justice found the plaintiff exercised poor judgment and was thus 70% liable.³³

The court wrote: “It appears that through inattention or poor judgment he [the plaintiff] failed to navigate the crossing safely. So, even though the defendant railway established the danger in the first place, and both defendants failed to warn the plaintiff of the danger, he [the plaintiff] must share a large part of the responsibility for the accident and ensuing damages, which could have been avoided. [Emphasis added.]”

Similarly, in Kennedy, the court considered the issue of contributory negligence against an inexperienced cyclist who struck a bollard [a short vertical post] when not paying attention.³⁴

The court, in deciding to apportion the degree of Mr. Kennedy’s fault at 60% stated: “I am satisfied that Mr. Kennedy contributed to his own damages by failing to use reasonable care and take proper precautions for his own safety.
I find that he was not paying sufficient attention as he rode along the pathway. [Emphasis added.]”

Therefore, even if liability is found to attach to a municipality in connection with a bicycle accident, speeding and other acts of carelessness can significantly limit a plaintiff’s ultimate recovery.

General Bicycle Safety Legislation

Cyclists must comply with other requirements contained in various statutes. Under the Highway Traffic Act [HTA], the term “vehicle” includes a bicycle,³⁵ which generally means cyclists must follow the same rules of the road as other vehicles.  Regulation-compliant helmets are also required on roadways or sidewalks in Ontario³⁶ for those under 18 years of age.³⁷ The helmet must be securely fastened under the chin.38 Parents have a responsibility to ensure their children under the age of 16 comply with the regulation.³⁹ According to the HTA, bicycles must be equipped with a functioning “alarm bell, gong or horn” and sounded whenever it is reasonably necessary to alert pedestrians.⁴⁰

Finally, there are also rules for cyclists about lighting and reflectors to ensure that they are visible to other vehicles in dark conditions. If biking on a highway when it is dark or 30 minutes from dusk or dawn, a cyclist must carry a lighted lamp displaying a white or amber light on its front and a red light or a reflector on its rear.⁴¹ White reflectors must also be placed on a bicycle’s front forks, and red reflective material on the rear.⁴²

Conclusion

The above provides a brief summary of the duties owed by a municipality in connection with the use of its roadways and recreational trails by cyclists. Cyclists also have a duty to act reasonably at all times, in order to protect themselves and others from harm. It is hoped that if both sides live up to their respective obligations, the incidence of future injuries from bicycle accidents may be significantly reduced.

1    Dave Meslin, Rob Ford: Cycling advocate? (March 13, 2011) The Toronto Star online <http://www.thestar.com/opinion/article/952946–rob-ford-cycling-advocate>
 2    A highway includes the entire municipal road allowance, and therefore in most cases will include municipal sidewalks.Municipal Act 2001, S.O. 2001 c. 25 s. 26 “MA”.
3    Municipal Act 2001, S.O. 2001 c. 25
4    Mero v. Regional Municipality of Waterloo, (1992) 7 O.R. (3d) 102 (C.A.).There are special exemptions to municipal liability for untraveled portions of highway MA s. 44(8).The section protects a municipality from liability for injuries arising from conditions of non-repair in locations where the public would not be expected to go. However, if inappropriate signage causes a party to involuntarily leave the travelled part of the roadway, this exemption does not apply. See Johnson (S.C.J.) at para. 76 affirmed (C.A.) “Johnson”.
5    Johnson (S.C.J.) at para. 76 affirmed (C.A.) at para. 33.
6    McCready v. County of Brant, [1939] S.C.R. 278 and McMaster v. York Regional Municipality (1987), 42 M.P.L.R. (2d) 90 (Ont. Gen. Div.).
7    Roycroft v. Kyte, [1999] O.J. No. 296; see also MA s. 44(3)(b).
8    Housen v. Nikolaisen [2002] 2 S.C.R. 235, quoting the Saskatchewan Court of Appeal case of Partridge v. Rural Municipality of Langenburg [1929] 3 W.W.R. 555 (Sask. C.A). See for example Johnson (S.C.J.) at para. 78 affirmed (C.A.) at para. 35. A reasonable state of repair is a question of fact, depending upon all the surrounding circumstances. “[R]epair” is a relative term, and hence the facts in one case afford no fixed rule by which to determine another case where the facts are different.
9    NA ss.1 and 2.
10    NA s. 3.
11    Negligence Act, R.S.O. 1990, c. N.1 (“NA”)
12    MA s. 44(3)(b).
13    MA s. 44(3)(c); Under MA s. 44(4) and (5) the Minister of Transportation may make specific or general regulations establishing minimum standards of repair for highways and bridges; See also O. Reg. 239/02 (Minimum Maintenance Standards for Municipal Highways).
14    MA s. 44(3)(a)
15    Shearn v. City of Burlington, [1990] O.J. No. 2790 affirmed with little commentary at [1994] O.J. No. 3934 (C.A.).
16    Shearn at para 13.
17    Shearn at paras. 25 and 28.
18    Shearn at paras. 25 and 28.
19    Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”).
20    Defined as  “recreational trails reasonably marked by notice as such” as per the OLA s. 4(4)(f) and Herbert at para 14
21    OLA s. 4(1) also includes harm and damage to a person’s property.
22    OLAs. 4.1.
23    Schneider v. St. Clair Region Conservation Authority (2009), 97 O.R. (3d) 81 (C.A.) (“Schneider”) at para. 24 through 29.
24    OLA s. 4(3)
25    Cormack at para. 21.
26    Cormack at para. 27.
27    Cormack at para. 29.
28    “What is being referenced is something beyond what can be assumed by all of us, as ordinary people know, something unusual, something inherently harmful or dangerous….the failure of the occupier to address a known danger of this magnitude would constitute “reckless disregard”.
Herbert at para. 26.
29    Herbert at paras. 20 to 22.
30    Herbert at para. 165.
31    Herbert at para. 172.
32    Danco v. Thunder Bay (City), [2000] O.J. No. 1208, 96 A.C.W.S. (3d) 334 (S.C.J.) affirmed in  [2001] O.J. No. 3442 (C.A.). (“Danco”)
33    Danco at para. 24. The Railway and City were found jointly liable for 30% of the Plaintiff’s damages.
34    Kennedy v. London (City) [2009] O.J. No. 1040, 58 M.P.L.R. (4th) 244 (S.C.J.) (“Kennedy”) at para. 76-78.
35    Highway Traffic Act, R.S.O. 1990, C.H-8 s. 1(1) (“HTA”).
36    http://www.toronto.ca/cycling/
safety/helmet/helmet_law.htm
37    R.R.O. 1990, Reg. 610 (Safety Helmets) s. 5.
38    HTA s. 104. (2.1)
39    HTA s.104(2.2)
40    HTA 105(7).