An old saying about driving in Canada says, “There are only two driving seasons in Canada: Winter and construction season.” Anyone who has spent considerable time driving in Canada knows that the winter and its shoulders can present numerous challenges to safe driving. At the same time, the summer is ripe for delays due to construction on roads.
With that said, it’s not uncommon for Albertans to experience vehicle damage due to road conditions. Even roads in urban centers such as Calgary and Edmonton are susceptible to potholes resulting from the freeze and thaw cycles that happen throughout colder months. When it comes to motor vehicle accidents or insurance claims, it makes sense to ask what kind of liability a city may have for damage resulting from road conditions.
A recent decision from the Provincial Court of Alberta allows us to look at how liability is assigned in such situations.
Lexus takes on damage as result of potholes
The incident leading to the matter is not one that would be completely unfamiliar to people who have driven in the Spring in Canada. On May 4, 2020, the plaintiff was on her way to work, travelling on a busy street. She was driving a 2019 Lexus in a reasonable state of repair and under the posted speed limit due to congestion.
The plaintiff noticed what she described as an unavoidable pothole, though the court noted that it was atypical of most potholes in that it ran about three feet long and was 6-12” in width at various points. It had a depth of about 4-5”. The plaintiff said she could not avoid hitting the pothole and drove through it, resulting in a tear to the side of her tire and damage to the rim of her car. The damages incurred cost just over $1,200 to repair.
On the day of the accident, the plaintiff took a photo of the pothole and reported it to the City of Edmonton. She told the court that no repair was ever completed in the months following the accident, but she believes other motorists also complained about the pothole.
City says potholes are unavoidable
The main witness for the defence was an employee for the City who we will refer to as “RC.” As Edmonton’s Director of Transportation, he had the relevant authority and expertise to speak on the matter.
RC had worked for the City for 16 years at the time of the hearing. He told the court that Edmonton experiences yearly potholes due to multiple freeze-thaw cycles. He testified that potholes constantly develop through the Spring season and that asphalt plants are usually not open and available to make “hot mix” until the warmer weather arrives, leaving the City to resort to “cold mix,” which sometimes does not last even a full day.
RC also told the court that the City employs dedicated pothole repair crews of 2-5 people each, though sometimes up to 10. Typically, one or two crews work during a given shift, responding to pothole requests, with the largest and most dangerous getting top priority. RC said that the pothole had been repaired by one of their crews before the plaintiff drove through it, but he could not say exactly when that would have happened. Additionally, there are no City employees responsible for monitoring potholes. Instead, they are recorded when people file complaints about them with the city.
To what degree is a city responsible for correcting potholes
The court began its analysis by stating that it is reasonable that a motorist operating a late model vehicle in good condition, driving safely on a major road, can expect their vehicle to not sustain damage due to something like a pothole. However, the court wrote that the reality is more nuanced than that. The court wrote that a number of laws inform the process to follow in order to find a city liable for such damage. They summed this process up as follows:
- a) (The plaintiff) has the onus of proving that she suffered a loss, that the loss was due to the disrepair (the pothole), that the loss had nothing to do with any action or inaction of hers, and the extent or quantification of that loss;
- b) (The plaintiff) has the onus of proving that the City knew of the disrepair;
- c) If a) and b) are established, the City has the onus of proving that it took reasonable steps in all the circumstances to prevent the existence of the disrepair.
In this case, the court was satisfied that the first condition was met. The second element was also satisfied. Even though the City may not have known about the exact state of that pothole, reports from other drivers, repairs done to the pothole in the past, and the City’s plans to resurface the road were enough to meet that threshold. However, in turning to the third element of the test, the court said it found no evidence of a policy decision to avoid or delay the repairing of the road. Instead, RC told the court that the City had plans to fix the pothole in the months following the accident, which was ultimately repaired.
The court also took a moment to summarize the public policy considerations played, stating that municipalities are not insurers of roads and are not obliged to see that people driving on the roads do not incur any vehicle damage. Even if people are driving safely, they must accept that damage to their vehicles can occur.
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