In Furlong v. Cambridge (City), Mr. Justice M. Dale Parayeski dismissed the plaintiff’s action arising out of having tripped on a sidewalk owned by the defendant municipality. The plaintiff and her husband were walking to their daughter’s home. The plaintiff was wearing running shoes. She looked up towards her daughter’s house, to see if her grandchildren were in the window, and tripped over a height discrepancy where two concrete slabs met on the sidewalk. She fell, injuring her head and shoulder.
The plaintiff called expert evidence that such height discrepancies should not exceed one quarter of an inch. The discrepancy that caused the accident was as much as three-quarters of an inch. However, Justice Parayeski held that that did not offend the obligation imposed by s. 44(1) of the Municipal Act:
The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Justice Parayeski said:
Here the height discrepancy, taken at its worst, might have been 3/4ths of an inch. This is not unreasonable given the fact that Saxony Circle is a quiet street lined with single family homes. The standard is not that of perfection. The standard suggested by the plaintiff’s expert, i.e that of keeping such height discrepancies to less than ¼ of an inch, is both unreasonable and unrealistic. It is worth noting that Mrs. Furlong herself did not expect sidewalks to be perfectly level.
His Honour also rejected the submission that the fact that the municipality took remedial measures after the accident constituted evidence of a state of non-repair. He remarked that while a court could draw this conclusion, it was not obliged to and he chose not to do so here.