Darleen Butler Plaintiff - v. -, 2011 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 044 Date: March 4, 2011 File: 434/2009 Location: Regina _____________________________________________________________________________ Between: Darleen Butler Plaintiff - and - City of Regina Defendant Darleen Butler Representing herself as Plaintiff Christine Clilfford For the Defendant _____________________________________________________________________________ JUDGMENT M. HINDS , J _____________________________________________________________________________ [ 1 ] Ms.

Butler, the Plaintiff in this case, is suing the Defendant City of Regina (the City) in negligence, alleging that the City failed to adequately warn her of hazards in a construction zone. Damage occurred to Ms. Butler’s vehicle when Ms. Butler drove into a road cut filled with fresh cement on a closed portion of Victoria Avenue. For the reasons which follow, I find that the City of Regina is not liable for the damage done to Ms. Butler’s vehicle.

FACTS [ 2 ] The events giving rise to this litigation are straightforward. During the summer of 2009, the City of Regina undertook an extensive road work project which occasioned the closure of portions of Victoria Avenue. On the date of the incident, all eastbound lanes were closed in between Broad Street and Winnipeg Street, and eastbound traffic was diverted onto 12 th Avenue. The two westbound lanes were also closed and westbound traffic was restricted to the parking lane on Victoria Avenue. The intersections on the south side of Victoria Avenue were closed off with barricades or traffic cones.

The intersections on the north side of Victoria Avenue appear to have been open to allow traffic to turn into the westbound parking lane. [ 3 ] On June 24, 2009, Ms. Butler was travelling south on Halifax Street with the intention of visiting a business on the south side of Victoria Avenue. She reached the intersection of Victoria and Halifax, and proceeded to turn left onto Victoria Avenue. While proceeding into the intersection, Ms. Butler observed a warning sign, facing north, in the median of Victoria Avenue which said Road Closed.

She observed that Halifax Street, south from Victoria, was blocked with barricades. Ms. Butler believed the Road Closed sign referred to Halifax Street. She does not remember seeing pylons restricting westbound traffic on Victoria. [ 4 ] Ms. Butler proceeded to travel east on Victoria Avenue. She noticed that the pavement in the parking lane had been torn up and that the lane was blocked off with pylons. She was unable to turn south onto St. John’s Street as it was barricaded. She was also unable to turn north onto St. John’s Street. Ms.

Butler decided to proceed eastbound on Victoria Avenue toward Winnipeg Street. As she drove eastbound, Ms. Butler observed that the surface of the roadway five to six feet in front of her vehicle had been cut away and filled with fresh cement running the width of the driving lanes on Victoria Avenue. The depth of the road cut off was four or five feet wide. Upon seeing the road cut Ms. Butler immediately applied her brakes. However, she was unable to stop her vehicle in time, and she drove into the road cut.

She was subsequently unable to remove her vehicle from the fresh cement. [ 5 ] The cement had been poured into the road cut a short time previously by a team of City workmen. At the time of Ms. Butler’s accident, the workmen were pouring cement into another cut on Victoria Avenue approximately thirty metres east of Ms. Butler’s vehicle. The workmen arrived immediately on the scene of the accident. The police arrived a short time later. Within twenty to thirty minutes of the accident, Jayne Collins, the City of Regina claims investigator, arrived to take pictures of the accident scene and the road signs. [ 6 ] Ms.

Butler’s vehicle was towed from the scene. It sustained thirteen hundred and ninety three dollars and seventy eight cents in damage. The City is not disputing the extent of the damage to Ms. Butler’s vehicle. Ms. Butler’s insurance covered those repairs above her seven hundred dollar deductible. [ 7 ] The only facts which appear to be in dispute are the placement of warning signs on Victoria Avenue and whether Ms. Butler was keeping a proper lookout. The City maintains that, at the time of the accident, a No Left Turn sign was present from the north side of the intersection of Halifax Street and Victoria. Ms.

Butler disputes this claim. She also claims that there was no sign facing eastbound traffic on Victoria advising that the road was closed. [ 8 ] The City of Regina called Jason Decelles as a witness. Mr. Decelles is a senior engineer with the City of Regina Public Works Department. He was responsible for determining where to place warning signs and barricades. His plans indicate that a sign with a No Left Turn symbol was to be placed facing north at the intersection of Halifax and Victoria.

He agrees that he cannot say definitively that the sign was in place at the time of the accident. [ 9 ] The City also called Jayne Collins, the City claims investigator. Ms. Collins arrived on the scene within half an hour of the accident and took photographs of Ms. Butler’s vehicle and of the signs and other markings at the nearby intersections. Her photographs indicate that the No Left Turn sign at the intersection of Halifax and Victoria and the west-facing Road Closed sign were present approximately one half hour after the incident occurred.

Significantly, her photographs also show a number of orange pylons on both sides of Victoria Avenue, barricades in the intersections with Victoria, including one barricade on the north side of the intersection with Halifax Street, and a number of construction vehicles and trailers stationed on both sides of the street.

[ 10 ] Ms. Butler contends that City workmen, in particular a “man in a green shirt”, placed the No Left Turn and the Road Closed signs in their positions after the accident but before the arrival on the scene of Ms. Collins. She says that the Road Closed sign had been facing north and that a City employee moved it to face west. I do not need to make a finding on this point to determine liability. POSITION OF THE PARTIES [ 11 ] Ms. Butler argues that the City of Regina owed a duty of care to motorists to warn them of hazards caused by the construction project.

She says that the City breached its standard of care by failing to adequately mark the area as a construction zone which was closed to traffic. In particular, the City failed to place a No Left Turn sign at the intersection of Halifax Street and Victoria Avenue, the City failed to place a Road Closed sign facing eastbound traffic on Victoria and failed to place barricades or pylons in front of the freshly-filled cut. [ 12 ] Ms.

Butler is requesting damages in the amount of her insurance deductible plus the costs of this litigation. [ 13 ] The City of Regina recognizes that it owes a duty of care to users of public works under the City’s jurisdiction. This duty of care is codified in The Cities Act , S.S. 2002, c. C-11.1. The City of Regina denies that it was negligent or that it failed to adequately warn motorists. The construction project had been publicized in daily reports in the local news media. The City maintains that warning signs were positioned as indicated in Mr.

Decelle’s diagram, and orange pylons were positioned to mark the construction site. [ 14 ] The City agrees that there was no barricade directly in front of the fresh concrete. However, the City explains that, as all eastbound lanes were closed, there should have been no traffic in those lanes to begin with. The concrete had been poured only minutes before Ms. Butler drove into it and the workmen were still pouring concrete at the next cut, a short distance down the street, at the time of Ms. Butler’s accident.

One of the witnesses, Peter Sindani, the foreman on that particular project, testified that the workmen would erect barricades at the completion of a task, but, as the cement project was taking place in a larger construction zone, they saw no need to erect barricades around the fresh pour part way through the project. [ 15 ] The City relies on

section 306 of The Cities Act . The relevant portions of that

section read as follows: 306(1) A city shall keep every street or other public place that is subject to the direction, control and management of the city, including all public works in, on or above the streets or other public place put there by the city or by any other person with the permission of the city, in a reasonable state of repair, having regard to: (

a) the character of the street, other public place or public work; and (

b) the area of the city in which the street, other public place or public work is located.

(1.1) For the purposes of this section, a street, road or other public place is to be considered in a reasonable state of repair if those who use the street, road or other public place can, exercising ordinary care, do so with safety.

(2) The city is liable for damage caused by failing to perform its duty pursuant to subsection (1). ....

(4) A city is not liable pursuant to this section: .... (

c) if the city proves that it took reasonable steps to prevent the disrepair from arising.

(5) A city is liable pursuant to this

section only if the city knew or ought to have known of the state of repair. This

section describes the duty of care a city owes to the users of the roadway. It also stipulates that a city will not be liable for an accident caused by a motorist’s failure to exercise ordinary care.

[16] The City also relies on jurisprudence under The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, (now replaced withThe Municipalities Act) and in particular Housen v. Nikolaisen, 2002 SCC 33. That case established municipalities have a duty to keepthe roads in a reasonable state of repair. What is reasonable will depend on the circumstances of each case. [17] The jurisprudence cited by the City establishes that drivers have a corresponding obligation to exercise “ordinary care”. InPartridge v. Rural Municipality of Langenburg, (SK CA), [1929] 3 W.W.R. 555 (Sask.

C.A.), at pp. 558-59, the Courtsaid: The extent of the statutory obligation placed upon municipal corporations to keep in repair the highways under their jurisdiction, hasbeen variously stated in numerous reported cases. There is, however, a general rule which may be gathered from the decisions, and thatis, 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 itwith safety. This statement was adopted by the Supreme Court in Housen v. Nikolaisen.

Both the majority and the dissent considered the conduct ofthe reasonable motorist, exercising ordinary care. [18] The City also relies upon

section 308 of The Cities Act. This

section purports to create a broad shield against liability forinjury or damage caused on a city construction site. The portions on which the City relies read: 308 A city is not liable for damage caused: (

a) by the presence, absence or type of any wall, fence, guardrail, railing, curb, pavement markings, traffic control device or barrier;or (

b) by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, treeor other material or thing adjacent to or in, along or on a street that is not on the travelled portion of the street. This

section has not been judicially considered. As I find that Ms. Butler’s accident was caused by her failure to exercise ordinary careand keep a proper lookout, I need not decide whether

section 308 shields the City to the extent argued. ANALYSIS [19] I am satisfied that the appropriate test to be applied is whether a reasonable driver, exercising ordinary care, would have beenable to navigate the same

section of roadway without incident. This involves considering whether the roadway was adequately markedto alert motorists of potential hazards. [20] I find that the City of Regina adequately warned motorists that a portion of Victoria Avenue between Halifax Street andOttawa Street was closed and that motorists should exercise extreme caution in driving near the construction zone. The presence ofbarricades, pylons and orange road signs is apparent in the photographs submitted by both Ms. Butler and by the City.

I am satisfied onthe balance of probabilities that a No Left Turn sign was positioned at the intersection of Halifax and Victoria. I am of the view that Ms.Butler did not see this sign. Furthermore I am satisfied that the City adequately signalled to motorists that a construction project wasunderway, that portions of the road were closed, and that motorists should exercise a greater than normal degree of caution. I do notconsider that the City was negligent in failing to mark the fresh concrete.

I accept the testimony of Peter Sindani on this point that, asthe road was already closed and the project was ongoing, it was reasonable to not erect a barricade immediately. [21] I find that the damage to Ms. Butler’s vehicle was caused by Ms. Butler’s failure to exercise ordinary care and keep a properlookout. Ms. Butler’s conduct does not match that of the reasonable driver exercising ordinary care. Victoria Avenue was clearlyundergoing a major construction project on the day in question. A No Left Turn sign was present. She should not have made a left-handturn from Halifax Street onto Victoria Avenue.

Moreover, had Ms. Butler driven her vehicle with due care and attention she would have

observed there were a large number of signs, pylons and barricades in the area that should have signalled to the reasonably careful motorist that the area was a construction zone and the entire area was closed. [ 22 ] Ms. Butler testified that she did not see the barricades, pylons and Road Closed sign until she was already committed to turning east on Victoria Avenue. I find that she did not see the No Left Turn sign either.

I am of the view that it should quickly have become apparent from the barricades blocking entrances to Victoria, from the pylons and uneven road surface in the eastbound parking lane, from various road work signs and from the presence of construction vehicles, that normal driving rules may not apply. At the very least, Ms. Butler should have proceeded with an extreme degree of caution. [ 23 ] This, I find, she did not do. She continued to drive east on Victoria Avenue for more than one city block.

She was driving sufficiently fast that she was unable to observe and respond to hazards in the roadway in time to prevent her vehicle from entering the fresh concrete. I am of the view that Ms. Butler would not have driven her vehicle into the concrete had she stopped her vehicle to assess the unusual situation she found herself in or had she driven at a slower speed. The damage which was done to Ms. Butler’s vehicle was a result of her failure to keep a proper lookout and exercise ordinary care in the circumstances of a road under construction. [ 24 ] I therefore dismiss the claim against the City of Regina.

There will be no order as to costs. _____________________ M. Hinds, J