Morsi et al. v. Fermar Paving Ltd. et al., 2011 ONCA 577

• Judge: MacPherson, Juriansz and Karakatsanis, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 30, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 577;(2011), 283 O.A.C. 247 (CA)

Morsi v. Fermar Paving Ltd. (2011), 283 O.A.C. 247 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. SE.011

Antonella Morsi, Christina Chiari Morsi and Sophia Marka Morsi, minors by their Litigation Guardian, Antonella Morsi, Carlo Morsi, Stephen Morsi and Maria Liidemann (plaintiffs/respondents) v. Fermar Paving Limited, Regional Municipality of York, and the Corporation of the City of Vaughan (defendants/appellants)

(C52495; C52505; 2011 ONCA 577)

Indexed As: Morsi et al. v. Fermar Paving Ltd. et al.

Ontario Court of Appeal

MacPherson, Juriansz and Karakatsanis, JJ.A.

September 8, 2011.

Summary:

The driver of a motor vehicle died in a single car accident on a curvy road that had just been resurfaced. His family sued the municipality and a paving company (Fermar).

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 3851, apportioned liability as: driver (50%), municipality (25%) and Fermar (25%). The municipality and Fermar appealed.

The Ontario Court of Appeal allowed the appeal. The municipality and Fermar were not liable for the accident. The sole cause of the accident was the driver's reckless driving.

Municipal Law - Topic 1724

Liability of municipalities - Highways and streets - Maintenance of - General - The driver of a motor vehicle died in a single car accident on a curvy road that had just been resurfaced - It was daylight, sunny and dry - The road transitioned from fresh pavement to pavement that had been resurfaced using a foam surface treatment - His family sued, inter alia, the municipality - The trial judge held that the municipality owed the driver a statutory duty to keep the road in a reasonable state of repair (Municipal Act, 2001, s. 44(1)) and found a lack of inspection in the transition area and a lack of adequate signage to warn of the change in the road surface - The driver was found to be driving at an excessive speed - The trial judge apportioned liability as: driver (50%), municipality (25%) and paving company (25%) - The Ontario Court of Appeal allowed the municipality's appeal - The cause of the accident was the driver's reckless driving - He would have seen, and ignored, two 60 kph speed signs, a reverse curve warning and a 40 kph advisory sign, and two construction signs - He also would have seen and experienced a long first curve, seen the reverse curve straight ahead of him, and noticed that the road surface straight ahead of him was about to change - Despite all this information, he chose to accelerate and reach a speed of 120 kph in a legal 60 kph zone with a curve advisory speed of 40 kph - See paragraphs 16 to 23.

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - [See Municipal Law - Topic 1724 ].

Municipal Law - Topic 1735

Liability of municipalities - Highways and streets - Dangerous highway conditions - Potholes, ruts, etc. - [See Municipal Law - Topic 1724 ].

Torts - Topic 50.02

Negligence - Standard of care - Particular persons and relationships - Road paver - [See Torts - Topic 83 ].

Torts - Topic 83

Negligence - Duty of care - Whether defendant took reasonable care - The driver of a motor vehicle died in a single car accident on a curvy road that had just been resurfaced - It was daylight, sunny and dry - The road transitioned from fresh pavement to pavement that had been resurfaced using a foam surface treatment - His family sued, inter alia, the paving company (Fermar) - The trial judge found a lack of inspection in the transition area and a lack of adequate signage to warn of the change in the road surface - The driver was found to be driving at an excessive speed - The trial judge apportioned liability as: driver (50%), municipality (25%) and Fermar (25%) - The Ontario Court of Appeal allowed Fermar's appeal - The cause of the accident was the driver's reckless driving, not any negligent conduct or omission by Fermar - The trial judge erred by concluding that Fermar should have known as a matter of common sense that motorists would travel in excess of the posted speed limit at the transition point - The driver entered the transition point, after a sharp acceleration, at 120 kph, double the posted speed limit of 60 kph and triple the speed advisory for the reverse curve of 40 kph - As a matter of common sense, Fermar should not be deemed to know that a driver would be so reckless on a curvy road with ongoing construction - See paragraphs 24 to 30.

Torts - Topic 394.1

Negligence - Motor vehicle - Standard of care of driver - On curves - [See Torts - Topic 83 ].

Torts - Topic 462

Negligence - Motor vehicle - Speed - Where reduced speed required - Road conditions - [See Torts - Topic 83 ].

Cases Noticed:

Cready v. Brant (County), [1939] S.C.R. 278, refd to. [para. 20].

Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, refd to. [para. 20].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 25].

Counsel:

D.H. Rogers, Q.C., for the appellant, Fermar Paving Limited;

J. Murray Davison, Q.C., and Charles A. Painter, for the appellant, Regional Municipality of York;

David R. Neill and Caroline Meyer, for the respondents.

This appeal was heard on June 30, 2011, before MacPherson, Juriansz and Karakatsanis, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., released the following decision for the court on September 8, 2011.