Nelson loses snow-clearing appeal, new trial ordered

Taryn Marchi was injured on Baker Street in 2015 and claims negligence by the city

A woman who was injured stepping into a downtown snowbank five years ago has won an appeal of a court decision in her lawsuit against the City of Nelson.

Taryn Marchi, then 28, injured her knee trying to step through a snowbank on the 300 block of Baker Street on Jan. 6, 2015. She was sent to Kootenay Lake Hospital and later transferred to Kelowna.

At the time, the city was working on plowing downtown during a heavy snowfall. Marchi was wearing running shoes and said she thought the snowbank between the street and the sidewalk would be sufficiently packed to cross.

Marchi sued the city, stating it should have left openings in the snowbank to permit safe access between parked cars and the sidewalk, and that this lack of access led to her injury.

At a Supreme Court of B.C. hearing in March 2019, Justice Mark McEwan ruled that Marchi was “the author of her own misfortune” and that the city was not liable.

He said the city cannot be liable for damages if the policies that guide activities like snow clearing were created in good faith and they were followed.

Three judges at the Court of Appeal, in reviewing McEwan’s decision, raised a difference between written policies on one hand and everyday operational decisions that are made in the moment by city crews on the other. They said the judge should have considered the difference.

A person can’t claim damages based on legitimate policies, but if the claim is based on an operational decision, the city might be liable, the Court of Appeal decision states.

There is no city policy about whether to dig passageways through a snowbank between the street and the sidewalk, or whether to work later on a snowy day. That’s an operational decision and the judge should have factored that in, the Court of Appeal said.

The judges also said that, under tort law (the law that governs the awarding of monetary damages for negligence) and the Negligence Act, the possibility that Marchi should have known about the risk does not necessarily absolve the city of liability.

The Court of Appeal has ruled there should be a new trial in the B.C. Supreme Court. A date has not been set.

The city has never denied that Marchi was injured. Before the trial started, the city and Marchi agreed on a potential dollar amount of damages, the details of which are not public. The judge in the new trial will decide what percentage of that amount, if any, to award to Marchi.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Stepping Stones in need of clothing donations

The Nelson shelter is asking for help

Nelson launches citizen survey on climate change

Survey can be filled out online until Jan. 31

GREG SCOTT: Lack of snow threatens Nelson’s winter carnival

In 1970, the Winter Carnival Society was fretting over whether the third annual event would go ahead

Province looking at steps to dissolve Jumbo resort municipality

Disincorporating municipality will likely require a legislative change, according to the province

WHO says China virus not global health emergency

The decision came after Chinese authorities moved to lock down three cities on Thursday

VIDEO: ‘Porn’ answer was a wrong one for Surrey family on ‘Feud’ game show

Surrey’s Rams competed on the TV show Wednesday night

Abandoned boats left to freeze on Okanagan Lake cause chaos

Over the last week weather conditions have caused three separate incidents

B.C. teacher witnesses coronavirus terror in Shanghai: ‘Everyone is on edge’

Face masks and hand sanitizer ‘sell out’ as 9 SARS-like illness cases confirmed in the city

B.C.-based firefighting plane crashes in Australia, killing three

Three people are confirmed dead in the crash in New South Wales

Living near major roads linked to higher risk of dementia, Parkinson’s: UBC study

Green space could mitigate some of the risks, researchers found

B.C. privacy commissioner suggests media civility for Prince Harry and Meghan

Lawyers for the Duke and Duchess of Sussex reportedly sent a letter to British press threatening legal action

Victoria’s plastic-bag ban ended by Supreme Court of Canada

City’s leave to appeal lower court’s decision denied

Most Read