Surprisingly many claimants think that they do not have legal recourse or they are unable to claim compensation if they slip and fall in a private or municipal parking lot – when the opposite is in fact true.
The law concerning parking lots fall under what we call the “Occupiers’ Liability Act” which is an Ontario law that mandates that property owners must keep their premises in a reasonable state of repair at all times. If a slip and fall victim can demonstrate that the parking lot owner did not keep their premises in a reasonable state of repair or that the property was not monitored on a consistent basis, then the parking lot owner will be found liable and the claimant will then be entitled to a determined amount of compensation.
The other common type of injury suffered in parking lots are motor vehicle accidents. There is no doubt for many, particularly senior citizens, parking lots can be a challenging place to drive. Many parking lot accidents are low impact collisions but when a car or truck hits a pedestrian, high or low impacts are often issues that are not of concern.
Parking lot slip and fall injuries happen quite often in the winter because either the parking lot owner or contracted maintenance company failed to properly salt or sand the premises.
Why do salting deficiencies typically happen? Often times, property owners will retain snow removal or maintenance companies for snow removal and salting. Some contracts mandate “salt-on-call” which means that the property owner needs to contact the contractor and request that the parking lot be salted. On the other hand, some contractors have the full authority to salt whenever they deem necessary. When this happens, contractors sometimes fail to monitor the weather properly, there might be scheduling deficiencies or the contractor might be overloaded with contracts and may not be able to get to the property in time.
Sometimes contractors will salt when it is much too cold, rendering the application of salt meaningless. Generally salt loses its effectiveness once the temperature fall below -10 to -15 degrees. At that point, salt is simply used for traction (salt causes freezing point depression – meaning that salt helps lower the freezing point of ice and, therefore, the melting point of water. Water freezes at 0°C. Salt can cause that freezing point to be lowered which forces the ice to melt and prevents the water from freezing).
There can also be an issue with a parking lot not having proper drains or catch basins to drain melted snow and ice. Without proper drainage, water has nowhere to go and either it ends up in a re-patterned freeze or it seeps underneath the pavement into the gravel sub-base, causing the pavement to weaken and eventually crack or collapse into potholes.
In addition, snow can be negligently plowed into and area which causes a run-off into pedestrian pathways after it melts.
Our Hamilton personal injury lawyers represent pedestrians who have suffered injuries caused by trip and falls in parking lots. Often times, parking lots that are not maintained, in combination with harsh Canadian weather, could cause asphalt to expand and contract. When cracks occur in parking lots, and water seeps in, that water could freeze, and cause payment to expand, bend, crack, weaken and eventually break.
Asphalt then sinks into the eroded portions of the damaged area of the parking lot, causing the formation of a pothole. Potholes then become tripping hazards if they are not properly repaired and patched. Tripping hazards occur because of the variance in height between two walking surfaces – i.e. the parking lot and the pothole.
Potholes can be very dangerous for pedestrians, as it is quite easy to catch the toe of a shoe on the edge or lip, causing a person to tumble and lose their balance. It’s important that potholes get fixed in a timely manner, and if they don’t, then the establishment, store, mall, airport-whatever the property may be, could be liable to pay you compensation for your serious injuries.
The owner of the premises must by law, where circumstances warrant, maintain “positive action,” meaning there must be procedural safeguards put in place to reasonably protect visitors from foreseeable harm. The safeguards should be routine, or consistent. The occupier has an ongoing duty to inspect, and the inspections should be documented in order to prove that the system was in fact complied with.
Have you ever seen inspection sheets on the back of a bathroom door in a restaurant? These are maintenance logs that show that the bathroom floor has been inspected hourly (or whatever the case may be) or regularly. The same goes for parking lots. There should be a routine inspection, that is logged. The inspection of the parking lot should be consistent, effective and within a set schedule.
A disorganized system involving multiple actors might be considered ineffective. A disorganized system with poor communication between management and employees, or management and contractor could be ineffective, inappropriate delays in attending to parking lot deficiencies, if certain areas are routinely unattended, if a system or policies were in place but the owner/contractor were not compliant, if a system did not adjust to proper weather conditions, or if there was no proper warning such as signage – all of these might be considered to be a problematic or ineffective system of maintenance.
Often times in the winter, even if a proper system is in place, a parking lot may unfortunately lie in a state of disrepair with cracks or potholes which could have been repaired but were not. Often times, cracks in parking lot pavement are caused by lack of drainage, or moisture issues along with direct exposure to sunlight. A property owner will be deposed in the circumstances, with questions about why routine maintenance and inspection did not lead to repair of the damaged parking lot pot holes by by patching, filling, and other surface treatments.
Pavement cracks, but more importantly potholes can a source of major parking lot tripping hazard. Potholes are normally caused by the expansion and contraction of water accumulation under the pavement. In the spring, when the ice melts the pavement will contract, leaving gaps underneath it where water gets trapped. When the water freezes and thaws underneath the asphalt over and over, the pavement will weaken and continue cracking until it ultimately gives way. When cars or other pressures repeatedly mount the weak pavement, depressions happen – thus creating the pothole in the parking lot.
The problem with potholes in the winter is that often times water ponds in potholes, freezes over and becomes a dangerous slip hazard to pedestrians.
Even if snow is removed from the parking lot, the remaining black ice formation in and around the pot-hole can be visually confusing. Even worse, potholes can be deadly for cyclists, who can be tossed from their bikes and fall if they hit an unexpected parking lot pothole.
Similar to winter pothole deficiencies, both pedestrians and cyclists can end up brutally hurt in a parking lot if the pavement is in a deficient state of non-repair during the non-winter or warmer months. As noted above, potholes start to form when water trickles into the gravel sub-base and undermines the structural enforcement of pavement. Parking lots are obviously susceptible to high traffic. The weight of cars and trucks moving over the pavement with weak support or sub-base support will cause the pavement to flex, crack and fall away and when potholes form.
Remember – property owners are mandated to promote positive action – meaning that reasonable inspection of their property must be maintained in order to avoid being found liable. Preventive maintenance to repair the cracks (to avoid further water penetration) and keep the water out of the asphalt is the best defence against potholes. If you have tripped in a pothole in the summer months – most of the time it’s because regular inspection and maintenance were negligently avoided. If you have been hurt by tripping or falling in a parking lot pot-hole or crack in the parking lot pavement it’s important that you contact a personal injury lawyer that specializes in occupier liability litigation.
Parking lot accidents are surprisingly common. The important thing to remember is that the Ontario Highway Traffic Act cannot be enforced on private property such as parking lots. The Highway Traffic Act generally applies only on highways, street, avenues, parkways, bridges ect. With this in mind, if an accident happened in a private parking lot, a defendant driver cannot generally be charged in contravention of the HTA.
More often than not, pedestrians in parking lots are hit by cars backing out of parking spaces. Accidents also occur in a parking lot when a car pulls forward out of a space. Drivers must always make sure that parking lot lanes are clear before pulling out.
From a personal injury perspective – there is nothing stopping an injured victim from commencing an action against an at-fault driver that caused injury in a parking lot. You are absolutely entitled to retain a personal injury lawyer to sue the at-fault driver for such things a:
Personal injury sustained as a result of a slip, trip or fall in a pothole or cracked pavement seems to vary by season. In the winter, many victims that slip and fall on a pothole with a ponded ice formation seem to suffer ankle fractures – such as bi-malleolar or tri-malleollar ankle fractures. Victims also seem to lower extremity fractures, suffer as patella, femur and hip fractures.
In the summer months upper extremity injuries seem more common. Whether there are pot-holes, cracks, debris or poor illumination which caused the fall, victims often try to extend out their hands or to protect themselves from falling. More often than not we see upper extremity injuries, such as rotator cuff injuries, fractures elbows, wrists or hands.
Injuries caused to pedestrians by motor vehicles vary. A large proportion of injured pedestrians suffer femur and hip fractures caused when vehicles are turning or backing out of a parking space without paying proper attention. Other vehicle accidents can be caused by drivers failing to yield to pedestrians, not signaling for a turn, disobeying signage and/or walk signals and distracted driving. If you have been hit by a vehicle it is vital that you speak to a personal injury lawyer to learn your options and rights without delay.
You should firstly call a Hamilton personal injury lawyer that can make the request that any video surveillance of the parking lot be preserved. Failure to preserve video evidence can result in claims for spoliation (lost of destruction of evidence). Your personal injury attorney would then undertake the appropriate investigation in order to advance a claim for damages. If you have suffered an injury as a result of a slip and fall, trip and fall or you have been hit by a car, truck or any other vehicle please contact our Hamilton Personal Injury Lawyers by filling out a contact form or calling 905-333-8888 today. We can help file your personal injury claim so you can recover the compensation that you need and deserve. Our firm offers free personal injury consultations and we never charge money upfront.