If the owners of a building, facility or road do not take reasonable care in the construction of such structures, and as a result, there are defects which constitute a danger to the safety of future users or occupants, these original owners may be charged with negligence even if the structure has been sold or ownership transferred. This means that former owners may be held accountable in the case of personal injury, death, or property damage that occurs under new ownership. The concept of ‘buyer beware’ does not necessarily apply when a building or other structure is sold. A relevant question is whether the new owner should or could have been aware of the defect through a reasonable opportunity to discover it through proper inspection, and also whether the new owner had a reasonable opportunity to make the necessary repairs.
Michael Spencer died in a serious car crash in December 2008. Michael’s family, the Plaintiffs, alleged that poor design and construction of the road in combination with improper snow removal were responsible for the accident. The Spencer family sued numerous defendants including the County of Hastings and Municipality of Tweed. Hastings brought forward a motion to dismiss the Plaintiff’s claims and all cross-claims against Hastings because 11 years prior to the accident, in Oct 1997, the County of Hastings had passed a bylaw to remove the road from the County Road system. Thus, the town of Tweed owned and maintained the road when the collision occurred. Hastings further argued that there was no evidence of a breach of duty on their part, resulting in or contributing to the accident. Hastings cited Section 44 of the Municipal Act 2001 which provides that the municipality that has jurisdiction over a highway or bridge (in this case, Tweed) shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
When the car crash occurred, it was snowing and the roads were snow covered, likely obscuring road markings. Tweed did not dispute jurisdiction over the road and accepted responsibility for negligence, if any, for improper snow removal. Although Tweed had patrolled the road at least 100’s of times in the 11 years preceding the accident and had completed reconstruction to other sections of this same road, Tweed refuted any responsibility in the poor road design that may have contributed to the accident.
The crash occurred on a two lane rural road with a speed limit of 80kms an hour when the eastbound Spencer vehicle likely crossed into the westbound lane. A reconstruction of probable speeds indicated that the Spencer vehicle was travelling at approximately 30 – 42 kilometers per hour and the Switzer vehicle at 63 – 78 kilometers per hour, which means they impacted at more than 100 kilometers per hour. The accident happened on a hillcrest which severely limited both drivers’ site distance. Russell Brownlee, a professional engineer retained by the Plaintiffs, made the following criticisms of the road at this location: the limited site distance reflects a 40 km per hour design speed; the stopping site distances were outside minimum standards in place in the 1960s; the road would have required surfacing reconstruction at least once since then, and; a sensible road authority would have reviewed road design and safety during the reconstruction.
The Plaintiffs submitted that there was a causative design defect in the road. The engineering evidence was uncontested in its conclusion that neither driver was able to avoid the collision as the sight lines provided neither driver with sufficient time to respond prior to impact. This ‘latent’ flaw required expert investigation; it was not recognizable through casual inspection. The Plaintiffs cited the case of Davis v. Grand  O.J. No. 3945 (ONCA), which sought damages for an accident that occurred due to negligence in allowing bushes to grow and obscure a stop sign; even though ownership for the road had been transferred from an upper tier municipality to a lower tier municipality 108 days prior to the accident, the upper tier municipality could not avoid liability for negligence. In Davis v. Grand, it was concluded that when a person creates a foreseeable danger to others on his or her property the fact that the property is transferred to another person is not, in and of itself, reason why the transferor should immediately be relieved of liability for damages. When a defect is latent and there is no evidence that wear and tear caused the injury, the original constructor of the defect cannot escape a duty of care. The Plaintiffs argued that wear and tear did not cause the accident, but rather, it was a result of improper design and construction of the hill.
Based on Davis, Justice Douglas held that if the County’s negligence created or increased the risk of an accident it should not be able to absolve itself of potential liability by transferring portions of roads to the City, particularly since Tweed has no legal choice but to accept a transfer of roads from Hastings County. Some of the issues considered by the court in determining whether the County was at least partially responsible for the accident are the passage of time since the change of ownership and the opportunity of the City to inspect the roads, receive information from the County and make any necessary repairs. Justice Douglas maintained that it must be determined at trial whether the design and construction of the road by Hastings was negligent or has sufficient time passed such that Hastings’ responsibility is lessened, if not extinguished. The motion to dismiss claims and cross claims against Hastings was dismissed.
Although this case has not yet been resolved for the Spencer family, it is clear that the passage of time does not necessarily discharge the responsibility for injuries resulting from unsafe construction. Both current and past owners may be held liable in certain circumstances, as may professionals such as contractors, builders and architects, if their failure to take reasonable care in construction has resulted in defects that cause personal injury. This case also highlights the potential negligence from improper snow removal contributing to the accident and death, which has yet to be resolved as well.
Actions for negligence being brought against municipalities or government agencies are clearly complicated and require expert knowledge and experience. Rastin and Associates has the necessary expertise in personal injury law to advocate and build a strong case for you, whether your injury was caused by the negligence of an individual or public facility.