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Reckless driver solely at fault for single-vehicle accident despite poor road construction

Michael Kennedy
Michael Kennedy

October 2011

By Michael Kennedy, Partner
Published in McCague Borlack's Transportation Newsletter

In Morsi v. Fermar Paving Limited, 2011 ONCA 577, the Ontario Court of Appeal held a motorist to be solely at fault for an accident even though the accident may have been avoided had road conditions been improved.

The facts of Morsi were that a driver was speeding along an under-construction roadway that transitioned from asphalt to loose gravel. The motorist's velocity greatly exceeded that of both temporary and permanent speed advisory signs. The driver ultimately lost control upon the gravel road and was tragically killed.

The motorist's family sued the regional municipality and road maintenance company for allegedly failing in their duties to properly maintain the road.

At trial, the motorist was found 50% liable for the accident while the defendants were each found 25% liable for breaching their respective standards of care. The defendants appealed, arguing that the driver was solely responsible for his death.

Writing for the Court of Appeal, Justice MacPherson ruled that the statutory standard of care for a municipality was that "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". This standard of care had been previously confirmed by the Supreme Court of Canada in various cases.

Justice MacPherson held that the trial judge's findings of fact proved that the municipality had met the above standard of care, as the trial judge stated in his reasons that "if [the driver] had operated his vehicle at the posted speed or even a speed modestly above it, he would have been able to successfully negotiate the transition area [between the asphalt and the gravel road]". Since the trial judge had found that the motorist was operating his vehicle recklessly (as opposed to exercising ordinary care), Justice MacPherson held that the municipality was absolved of liability.

With respect to the road maintenance company, Justice MacPherson affirmed the common law standard of care, which of course is that "a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances". At trial, the judge had found that the road work company should have anticipated that motorists would drive upon the gravel road in excess of the posted speed limit and taken the necessary precautions. Justice MacPherson disagreed, as the driver in this case was traveling at twice the posted speed limit, a circumstance that a reasonable person would not have taken precaution against. As such, the road maintenance company was absolved of liability as well.

Justice MacPherson therefore held that the sole cause of the unfortunate accident was the reckless driving of the deceased motorist. The action against the defendants was dismissed.

This case is important in that it shows that poor road conditions will not automatically impose a degree of liability to the parties responsible for maintaining the highways. One could possibly use this case to argue that even the most decrepit road could satisfy the standard of care provided the necessary precautions (such as warning signs and appropriate speed limits) are in place.



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