As the number of cyclists increases, what must municipalities do to keep them safe?
Municipalities have a statutory duty to maintain their roads in a proper state of repair (see, for example, s. 44 of Ontario’s Municipal Act), and a common law duty to warn the road users of hazards. A condition of non-repair can involve “any aspect of the road and its environs”, including “not only the surface of the road but also the alignment of the road, obstacles on the side of the road and signage” (Mero v. Waterloo (Regional Municipality) (1992), 7 O.R. (3d) 102 ).Several courts have found that the reasonable state of repair required for cyclists may be different from that required for cars.
To operate safely, bicycles may require better road conditions or gradients than other vehicles. In Johnson v. Milton (Town), two cyclists on a tandem lost control cycling down a steep rural road that had washboarding, a sharp turn and a narrow bridge. One cyclist was injured and the other killed. The Court of Appeal apportioned 60% of the liability to the Town of Oakville.
Oakville was liable because the accident would likely not have occurred had the town posted better warning signs and if the “the road grades were not excessive and … there were no undulations in the steepest part of the road that could potentially cause a loss of control due to ‘speed wobble’… given the location of the undulations on the steepest part of the slope and the fact that they could not be seen or anticipated, they constituted a trap for the unwary.”
Many municipalities are expanding their cycling infrastructure – putting in bike lanes, sharrows, and designated bike routes. Reasonably enough, the courts require municipalities to ensure that designated bike routes can be used safely by cyclists. This could mean modifying the design of intersections, providing cyclist-specific signage, etc.
For example, in Repic v. Hamilton (City), a cyclist was hit by a car at a bike route/multi-use path, where it crossed a freeway on-ramp. The cyclist argued that the design of the interchange, which emphasized a “free-flow” of traffic from an arterial road onto the freeway, constituted “disrepair”, as it did not consider the safety of road users other than motorists.
The judge agreed, finding that the City’s failure to do anything to protect pedestrians and cyclists using the path fell below the reasonable standard of care: “The failure of the City to mark the crossing, alert motorists of the crossing, alert cyclists that the bike path was ending, or to consider any of the other modifications testified to by the various experts, left this intersection in a state of disrepair.” Since the City had a duty to provide a safe intersection for all users, it was held 15% liable for the accident. The decision was upheld on appeal.
In Wong v. Vancouver (City), the plaintiff cyclist was injured when she rode over a trench that a City work crew made during sewage and watermain installation, across a designated bike route. The cyclist argued that because the City was working on a street that formed part of a City-designated bicycle route, it was required to treat the job differently. The site, as left by the work crew the afternoon before the cyclist was injured, presented no hazard to motorists but was an obvious risk to cyclists. She argued that the City should have put in place special signage for a bicycle detour which it had available for just such a purpose.
The British Columbia Supreme Court found that the City should have implemented more effective measures to protect cyclists from the hazard it had created, such as side-by-side barriers for the full length of the cut and/or bicycle detour signage. The City was found 75% liable and the cyclist was awarded $10,000 in non-pecuniary damages, $540 for pre-trial income loss, $200 for her damaged bicycle, $5000 for the cost of future care and $2132 for dental repair.
In Evans v. Toronto (City) (2004 Carswell 4721), a cyclist was injured when a driver opened his door into traffic on a bike route, the dreaded “door prize”. The City was found 25% liable. The Court ruled that the City had a higher obligation to protect cyclists when they are using a designated cycling route:
I agree that cyclists should have an equal share of the road that is safe, especially when the City has adopted a bicycle-friendly policy and encourages cycling.
The designation as a bike route must mean something, some indication that the street is somewhat safer than the unsigned streets. The road, at this location, is not bicycle friendly. It leaves very little room for a cyclist to maneuver, very little margin for error. Sure, a skilled cyclist can pass in safety, but roads should be safe for the ordinary cyclist. At one time, cycling was quite rare in the City, but with the proliferation of bicycles and the City’s encouragement for health reasons, reducing congestion, less burning of fossil fuels, the City should have done something more positive about bike safety at this location.”
The Court concluded that the City “should have done something to make the road safer.”
Thus, municipalities have a positive duty to make their roads safe for all road users, including cyclists. This is especially true along designated bike routes. Surely no one wants more cyclists dying on city streets. It’s time to do something to prevent it.
Dianne Saxe and Meredith James
This article was originally published in that excellent magazine, Municipal World.