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.

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