On May 3, 2012, the Supreme Court of Canada dismissed an application for leave to appeal the dismissal of an action seeking damages for alleged negligent road maintenance [Morsi v. Fermar Paving Limited et al, SCC 34515].
The claim arose from a single vehicle accident. The trial judge correctly stated that the municipality was required to ensure the roadway “was in a state of repair that was reasonable in the circumstances such that users of the road, exercising ordinary care” could travel upon it in safety…” The trial judge also held that, if the deceased driver “had been operating his vehicle at the posted speed limit, or even slightly above it he would have been able to successfully negotiate the transition area. There is ample evidence in this case which demonstrates that speed was a significant factor in this collision.” However, the trial judge apportioned liability at 25% to the municipal road authority, 25% to the contractor that had been working on the roadway, and 50% to the deceased driver.
The Ontario Court of Appeal overturned the verdict, and dismissed the action as against the road authority and the contractor [Morsi v. Fermar Paving Limited et al 2011 ONCA 577]. The Court noted the deceased driver was travelling at a speed in excess of 90 km/hr and even approaching 120 km/hr in a 60 km/hr zone. In addition signs had also been posted warning of construction being done on the roadway. Further, there was a sign posted indicating that a curve near the area of the accident should not be taken at more than 40 km/hr.
The case reaffirms the test set out by the Supreme Court regarding the duty to be met by road authorities, namely that the obligation to maintain roadways is not a standard of perfection, but rather a standard of reasonableness. In addition, when assessing whether maintenance has been reasonable, it can be anticipated by the municipality that the persons using the roadway will be exercising ordinary care themselves.