During your morning training, you decide to go for a few kilometers in your neighborhood before your workday. However, as you begin to warm up, your foot slips into a hole in the sidewalk that has collapsed and you sprain your ankle. After a long day in the hospital because of this hole so well hidden, a question remains; Do you have recourse against the city?
Often, the success of a civil liability action is summed up in the presence or absence of three elements. Is there fault, harm and a causal link between them? If these concepts are completely unknown to you, you can refer to this other legal capsule of our firm. In practice, it is often found that fault can often be difficult to prove, but the concept of a civil liability trap can sometimes help us, as would be the case in this situation. We will explore in more depth in the text that follows the implications of this notion imported into Quebec from English law.
Definition and examples
Obviously, a trap in law is not just a simple lookout and many situations can be called traps if they meet 3 important characteristics. Thus, if the following 3 elements are fulfilled, there is a good chance that it is a trap and that the fault is established.
First, a trap must be inherently dangerous. This is obviously the case with the hole in the sidewalk mentioned earlier, but it is also the case for a poorly signposted barrier, a pipe hidden under the snow and many other situations. The question to be asked is whether the person in charge knew or should have known that the situation he was allowing to continue had an objective risk of injuring a person. If this is the case, then the situation is inherently dangerous.
Secondly, a trap must be concealed or camouflaged, which means that the dangerous situation should not be obvious to all. It is important to note that this criterion is now much broader than it was previously thanks to a new file. In this decision, it is about a lady who falls off her bike because of a garden hose that crossed the bike path. This hose was obviously not concealed or camouflaged, but the victim thought he could pass over it until a city employee manipulated the hose in such a way as to suddenly make it dangerous for all cyclists. Thus, although the hose was obviously visible to all, the court therefore concluded “that an abnormal and unpredictable situation can constitute a trap despite the fact that the danger is visible”. Thus, despite the fact that the trap is visible, it will sometimes be necessary to ask whether the situation created was surprising for the victim.
Thirdly, a trap must be abnormal. This criterion can often be very difficult to differentiate with the latter, but there is a certain distinction. Indeed, a trap can obviously be hidden without being abnormal. A great example would be the ice sheet on a ski mountain. Indeed, a patch of ice on the track can be concealed by new snow without it being considered a trap. Indeed, a careful and diligent skier obviously knows that ice is a common element on a mountain and that he must remain attentive when descending. This is also why ice on a sidewalk would hardly be qualified as a trap. Unlike the pothole mentioned in the introduction, this situation is so common following a winter storm that it would be difficult to argue that it is abnormal.
Limitations of the concept of trap
While the concept of a trap goes a long way in proving fault, meeting all the criteria does not mean that the remedy will certainly be won for the entire damage. Indeed, there are 2 situations that can limit the liability of the defendant.
In the first place, he can often share the blame if the victim had knowledge of the danger. Indeed, it is simple to observe that if, for example, a victim ignores repeated warnings, he will have to share some of the blame for what happened. The defendant may be liable for part of the damage if it did not act to resolve the situation. Thus, a simple warning may harm the remedy, but does not doom it to failure.
Second, he may share the defendant’s fault or non-liability if the victim was not entitled to access the land where the accident occurred. Indeed, since the victim was not allowed to enter the field, there is a good chance that this will influence the court’s decision. However, it is important to note that this situation is only a complete defense, which may come as a surprise to some. Indeed, any prudent and diligent owner must take into consideration that it is always foreseeable that a third party would ignore his warnings, and he therefore committed a fault when he did not act to resolve the situation that created a trap.
In conclusion, the notion of a civil liability trap is sometimes a very powerful tool for shaping fault, but this does not mean that any recourse that invokes it is doomed to success. If you think that you have been the victim of a trap that has caused you harm, do not hesitate to contact our firm to know your rights in more depth in relation to your particular situation.