The following blog post is brought to you by Toronto slip and fall lawyer Mark Yazdani. For more information about slip and fall lawsuits, see his law firm website: www.slipfall.ca.

The Cooney vs. Kingston (City) court case, decided June 1, 2005, at the Ontario Superior Court of Justice, is a slip and fall case argued on gross negligence.

Early winter morning, February 11, 2002, Lorne Cooney,  then 44, was wearing his usual winter gear with hiking boots when he slipped on a ridged piece of ice formed by frozen footprints on the sidewalk in Kingston. His feet slid from under him and he wound up lying ‘back down’ on the sidewalk. Mr. Cooney was familiar with the area where he fell as he had delivered the daily newspaper regularly every morning there for the past year.

He was taken to the emergency department at Kingston General Hospital where his right ankle, tibia and fibula were x-rayed, revealing “a fracture through the lateral malleolus”. The ankle was casted and Mr. Cooney was sent home with crutches. He subsequently returned to the hospital to be x-rayed and re-casted. In all, he was casted a total of six to eight weeks and used a cane for two months.

Mr. Cooney hired a Kingston Personal Injury Lawyer and sued the City of Kingston for failing to maintain the sidewalk, thereby creating a hazardous situation constituting gross negligence.

At trial, Mr. Cooney argued that the City was grossly negligent since it was aware or should have been aware that in the days leading up to the accident there had been a thaw/freeze cycle and the City’s Operations Department Road Division Winter Control plan contained no reference to inspection or service standards for ice on sidewalks.

The City of Kingston argued that it was not grossly negligent in its maintenance of the sidewalk and Mr. Cooney’s fall was caused by his own actions. Mr. Cooney had substantial experience having traversed the same sidewalks for a number of days and Mr. Cooney was aware of the conditions and these conditions had not changed. Further, the defendant argued its Winter Control Plan practices were in place to maintain the sidewalks.

At the conclusion of the trial, the court stated it was satisfied that the City was grossly negligent in failing to maintain the sidewalk in a safe condition and while they had a written policy, this policy did not call for inspection nor provide standards of service when ice alone was the issue. Further, the court noted there was no evidence to contradict Mr. Cooney’s claim that his fall was caused by ridges in the ice formed by footprints which had been left to freeze in place.

However, the court also found that Mr. Cooney has failed to keep proper lookout for icy conditions and was thus partially responsible for his fall.  The court therefore assessed the respective share of liability at 50% for the City of Kingston and 50% for Mr. Cooney.

Mr. Cooney was awarded damages of $40,000 less 50% reduction for contributory negligence.

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