Well, do you? What do you think?
To be clear, I’m not talking about a driveway or walkway on your property. You definitely have a duty to keep those reasonably safe (that’s the subject of another blog to come). I’m talking about the public sidewalk in front of your house or surrounding your house (if you live on a corner).
And to be even more specific, I’m talking about homeowners who are living on their property (i.e. not landlord versus tenant obligations).
I think most homeowners would just assume they have to clear the public sidewalks adjacent to their homes. My dad did it when I was growing up (I’m sure he still does). I see my neighbours doing it on my street (thank you!). As for me, once I had my own house, I just presumed I had a legal duty to do so.
The actual, real answer to the question is a very typical lawyer answer. You MAY have to clear the public sidewalk…but it depends on the circumstances.
Yes, it’s true that sidewalks are actually “owned” by the city or town and not the homeowner. The municipality has a responsibility to keep sidewalks sufficiently safe under the Municipal Act (that’s also the subject of another blog to come). But cities and towns not uncommonly enact by-laws requiring homeowners to also address snow and ice on municipal sidewalks. That’s the case, for instance, in Hamilton, Milton and Toronto. If you fail to follow the by-law, you can be fined.
But what happens if someone slips and falls on an icy public sidewalk that was not properly taken care of? Can the adjacent homeowner be legally responsible for the accident?
The answer is YES!…but maybe not in the way you think.
Making a habit of clearing a public sidewalk of snow and ice, or applying sand or ice melter, would not create any legal responsibility. Also, even if your municipality has enacted a by-law requiring you to keep sidewalks safe and clear, the by-law itself cannot create civil liability for a slip and fall. By-laws create a responsibility that leads to fines if they are not followed – not a civil duty of care to the public at large for which you can be sued when the duty is not met.
But one way (though not the only way) homeowners can be liable for a slip and fall on city property is if they allow something from their own property, such as snow or water, to flow off their land and onto the sidewalk.
This can happen, for instance, in the wintertime when rain or melted snow flow from the roof, into the eavestroughs and then out the downspout and onto the sidewalk. The water can freeze and create quite the hazard for passersby. The ice can even be hidden by later snowfall, making the situation even more dangerous.
If you have water flowing onto the sidewalk from your downspout, there are a number of potential solutions available, or at least some actions that you can take to make things safer. Here are some of them:
- Be extra diligent about looking at the sidewalks surrounding your house and address the snow and ice as the circumstances require to make the sidewalk reasonably safe.
- Redirect the water coming out from your downspout so that it does not flow onto the sidewalk. You may need a downspout diverter to help you (those plastic accordion looking things).
- Have your downspout discharge into a rain barrel (for instance, if your diverter is not preventing the water from pooling / accumulating onto the sidewalk).
- Investigate whether or not additional downspouts are required and place them in strategic locations so the water coming out the downspouts is more spread out.
- Investigate whether or not a swale is needed on your front lawn.
What you may be required to do to address snow and ice on a public sidewalk will depend on the circumstances. Plowing or shoveling, applying ice-melter, spreading sand or breaking up the ice may all be needed.
So let’s go back to my initial question. Do you really have to clear the sidewalk surrounding your home of snow and ice? Yes, maybe. You do if a by-law says you do. You do if water flows from your property and onto the sidewalk. In the latter situation, you can even be held legally responsible for a slip and fall on a municipal sidewalk.
There are other instances too when you will have that obligation imposed on you as a homeowner (this blog is not meant to be a legal treatise on the subject).
But at the end of the day, no matter what a by-law says, or what the courts rule, or legislators enact, be a Fred Rogers. Just be a good neighbour! Regularly inspect the public sidewalk surrounding your home. And keep it reasonably clear and safe! That’s my two cents.