Dealing with Municipal Failure to

Dr. Barry Wellar, MCIP, Principal
Dr Barry Wellar MCIP Principal
Wellar Consulting Inc.,
Professor Emeritus
University of Ottawa,
Distinguished Research Fellow
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Transport Action Canada,
Policy and Research Advisor
Federation of Urban Neighbourhoods

Slides for Invited Presentation

Abbottsford House Breakfast Lecture Series
http://www.glebecentre.ca/
Ottawa, Canada
Ott C d

January 31, 2011

ScopinggMunicipal Interest InvolvinggPedestrians:
Scoping Municipal Interest Involving Pedestrians:
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Search Official Documents for Details

Search targets: commitments, policies, promises, pronouncements,
g p p p
S h i li i i
agreements, advertisements, endorsements, pledges, and related
statements that endorse, support, extol, exhort, encourage,
promote, call for, and otherwise demonstrate a municipal “interest”
in the use by pedestrians of such public transportation facilities as ”
in the use by f
ll pedestrians of such public transportation facilities as
d h d l“
sidewalks, paths, bridges, roads, streets, highways, intersections,
in the use by pedestrians of such public transportation facilities as
and crosswalks.
and crosswalks.

Table 1. Illustrative List of Municipal and Provincial
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Documents with a Legal Aspect Pertaining to Pedestrians
• Acts • Media releases
S h • By‐Laws i li i • Official Plans
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• Charters • Ordinances
• Circulars • Public announcements
• Committee minutes • Regulations
ll f d h
• Council minutes d • Reports l“ ”
• Constitutions • Resolutions
• Drawings • Secondary Plans
• Laws • Surveys
and crosswalks.
• Manuals • Website postings
• Maps

ScopingOutlining Municipal Burden of Care
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Municipal Interest Involving Pedestrians:
Parameters Involving Pedestrians

In order to achieve duty of care and standard of care obligations
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S h i li i i
with regard to pedestrians, there are states of affairs to be achieved
and activities to be undertaken in reasonable ways by municipal
governments to ensure that a reasonable effort is made to meet the
reasonable needs and expectations of pedestrians.
reasonable ll f
needs and expectations of pedestrians
d h d l“ ”
and crosswalks.

Why Lawyers and Experts Are Involved in Deliberating
Scoping Municipal Interest Involving Pedestrians: g
ScopingyMunicipal p
y Interest Involving Pedestrians:
Burden of Care Parameters Involving Pedestrians

Because producing and presenting evidence to establish or negate
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S h i li i i
cause‐effect relations and liability (due to negligence) begins with
mastering the parameters and continues into the details. Table 2
contains several indicative reasons why lawyers and court‐
recognized experts are retained for duty of care/standard of care
recognized experts are retained d duty of care/standard “ care ”
ll f d h for l of
actions.
and crosswalks.

Table 2. Parameters of Burden of Care that
Have Been and Are Matters of Political, Social,
Methodological, and Legal Contention
“Duty of care obligations”
“D t if bli li tii ”
S h i
“Standard of care obligations”
“States of affairs to be achieved”
ll f“Activities to be undertaken”
d h d l“ ”
“Demonstrate that a reasonable effort has
been made”
and crosswalks. “Meet the reasonable needs of pedestrians
in reasonable ways”

Previous Papers and Presentations Commenting on
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These and Other Burden of Care Parameters

A selection of online materials prepared by B. Wellar is provided in
p p y p
S h i li i i
the Background Materials section at the conclusion of the
presentation.
ll f d h d l“ ”
and crosswalks.

Taking Care of Business for Pedestrians
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Not a Simple Matter

Table 3 is indicative of the potential legal scope of municipal matters
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Srelated to duty of care and standard of care obligations involving
h i li i i
pedestrians.
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and crosswalks.

Scoping Municipal p
Table 3. Municipal Duty of Care/Standard of
y /
Interest Involving Pedestrians:
Care Materials and Functions that Have,
Could Have, or Should Have Implications for
Pedestrians: An Indicative Listing
S h i li i i
Air pollution alerts
Building demolitions
Building permits
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ll f d By‐laws d
h l“ ”
Censuses
Crimes against people reports
and crosswalks. Crimes against property reports
Crimes against property reports
Cyclist collision reports

Scoping Municipal p
y /
Pedestrians: An Indicative Listing (Continued)
S h i li i i
Development approvals
Development charge schedules
Emergency measures
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ll f d Emergency vehicle reports
h d l“ ”
Engineering reports
Hazards reports
and crosswalks. Health alerts
Health alerts
Impact assessments

Scoping Municipal p
y /
S h i li i i
Infrastructure reviews
Intersection modifications
Maintenance of roadway reports
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ll f dMaintenance of sidewalk reports l “
h d ”
Maps/mapping reports
Motor vehicle collision reports
and crosswalks. Pedestrian slip‐and‐fall events
Pedestrian slip and fall events

Scoping Municipal p
y /
S h i li i i
Pedestrian‐motor vehicle collisions
Performance analysis reports
Performance measure reports
p
ll f d h d
Plan amendments l“ ”
Plans – Comprehensive
Plans – General
and crosswalks. Plans Official
Plans –
Plans – Secondary

Scoping Municipal p
y /
S h i li i i
Plans of subdivision
Public safety programs
Public safety reports
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ll f dRezoning applications
h d l“ ”
Risk analyses
Road construction alerts
and crosswalks. Road signage practices
Road signage practices

Scoping Municipal p
y /
S h i li i i
Road widenings
Surveys/surveying
Traffic counts
ll f d Traffic police assignments
h d l“ ”
Transit routing
Urban impact assessments
and crosswalks. Zoning approvals
Zoning approvals

Meeting Duty of Care and Standard of Care
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Obligations for Pedestrians Involves
Diverse and Non‐Trivial Challenges

S h i li i i
Table 4 and Table 5 list source materials which illustrate the many
kinds of situations and events that underlie duty of care and/or
standard of care legal actions involving pedestrians.
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ll f d h d l“ ”
and crosswalks.

Scoping Municipal ,Interest Involving Pedestrians:
Table 4. Deaths, Injuries, and Other Costs of
j ,
Burden of Care Failures that Affect Pedestrians:
Results from Newspaper Searches
Done More than TEN Years Ago
S h i li i i
Newspapers as a Source of Fact and
Opinion on Pedestrians’ Safety, Comfort, Convenience:
llAf K
A Keyword‐Based Literature Search and Reviewl “
d d B d Li d
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promote, call for, and otherwise demonstrate a municipal “interest” ”
(B. Wellar. Walking Security Index Project Report.
Submitted to the Region of Ottawa‐Carleton,
and crosswalks. January 2000.)

Table 5. A Selection of Headlines from the Newspapers Report

S h i li i i
“No pedestrian professor – Fiery fighter:
U of O Prof. has taken on developers and governments”
“His latest beef is with dangerous drivers”
His latest beef is with dangerous drivers
ll f d h d l“ ”
and crosswalks.

bl Scopingl Municipal Interest Involving Pedestrians:
f dl f h
(Continued)

S h “A dangerous intersection”i
i li i
“Children’s lives needlessly put at risk –
Pedestrian situation dangerous”
ll f d h d l“ ”
“Crackdown at the crosswalks:
Crossing a hazard to pedestrians”
and crosswalks. “Death adds to grim toll on roads”
Death adds to grim toll on roads

f dl f h
(Continued)

S h i li i i
“Death of elderly woman puts dangerous stretch of road in context”
“Hamtramck crosswalk leads in pedestrian deaths”
ll f “Icy sidewalks sore point for seniors” l “
d h d ”
“Minnesota rude: Drivers ignoring crosswalk law –
motorists fail to stop or slow for pedestrians”
and crosswalks.

f dl f h
(Continued)

S h i li i i
“Ottawa plans to let sun melt snow – City feels
expense of snow removal
not warranted with spring on the way”
ll f d h d l“ ”
and crosswalks.

f dl f h
(Continued)

S h i li i i
“Pedestrian fatality raises new concerns”
“Pedestrian situation dangerous”
“Pedestrians are on the verge of a breakdown, study finds ”
ll f d h d l“
pedestrians get worst of the snow”
“Police report rise in elderly pedestrian deaths”
and crosswalks.

f dl f h
(Continued)

S h i li i i
“Road tragedy sparks suit”
“Safety threat”
ll f d h d
“Seeing red on Sherbrooke Street” l“ ”
“Stop, yield, and be nice – Region says it has done
what it can, now safety is up to drivers”
and crosswalks.

f dl f h
(Continued)

S h i li i i
“The battle for the streets of Toronto”
“Whitby resident charged after mishap”
ll f “Woman dies after being hit by car” l “
d h d ”
“10 most dangerous intersections –
congestion, poor design deadly mix”
and crosswalks.

Scoping Municipal Interest InvolvingDealing with
Table 6. Evidence and Advice for Dealing with
Table 6. Evidence and Advice for Pedestrians:
Standard of Care Failures Affecting Pedestrians?
A Selection of Headlines from the Newspapers Report
S h i li i i
“Accident sparks call for cameras”
“A matter of health – Scofflaw motorists
d endanger pedestrians and
endanger pedestrians, and
ll f h d l“ ”
health minister should speak out”
and crosswalks.

(Continued)
S h i li i i
“A pedestrian’s nightmare – Bad intersections
make Ottawa‐Carleton one of the
ll fmost dangerous places in Canada to walk” l “
d h ld i C d lk”
promote, call for, and otherwise demonstrate a municipal “interest” ”
and crosswalks.

(Continued)
S h i li i i
“Collisions can‐and‐do happen as skaters,
cyclists, and pedestrians vie for space”
ll f d h kd
“Crackdown at the crosswalks:
“C d t th lk
l“ ”
Police help make streets a little less mean”
“Crossing a hazard to walkers”
“Cutbacks threatening citizens’ lives group warns”
“Cutbacks threatening citizens’ lives group warns”
and crosswalks.
“Fear and loathing at the cut‐off”

(Continued)
S h i li i i
“Give Ottawa a winter of walkable sidewalks”
“Inaction on smog steams critics”
ll f d h d l“ ”
“Heavy trucks need side mirrors to prevent more deaths”
“Line won’t stop aggression”
“Ottawa‐area drivers the most dangerous I’ve seen”
Ottawa area drivers the most dangerous I ve seen
and crosswalks.
“Pedestrians are put at risk”

(Continued)
S h i li i i
“Political decision blocks photo radar”
“Portland studies ways to improve
Portland studies ways to improve
ll f d h d l“ ”
police enforcement of traffic laws”
“Quebec tightens rules on tinted windshields”
and crosswalks. Drivers are running stop lights in rising numbers”
“Red alert –

(Continued)
S h i li i i
“Region studies pedestrian safety at Kirkwood and Merivale”
“Report key to pedestrian safety”
Report key to pedestrian safety
ll f d h d l“ ”
“Safe intersections must be standard”
“Safety plan has serious problems”
and crosswalks.
“Seattle: A safe place to be if you’re a pedestrian”

(Continued)
S h i li i i
“The Walking Security Index –
Working Towards Pedestrian‐Friendly Intersections”
ll f d h d l“ ”
“Warning: Puddles a problem for pedestrians”
“Why bother with school “No Stopping” zones if
even parents of students ignore them?
even parents of students ignore them?”
and crosswalks.
“Why streets aren’t safe: The drivers”

Scoping Municipal Interest Thi I “NPedestrians:
Involving
That Was Then, This Is “Now”:
Th t W Th ”
Staying the (Newspaper) Course

S h i li i i
“Roads scholar takes stand for pedestrian safety”
(Ottawa Citizen, Tuesday, June 29, 2010)
ll f d h d l“ ”
and crosswalks.

NOTE: Appreciating “The Literature” Is No Trivial Task

SThere are at least nine different types of literature which could be
There are at least nine different types of literature which could be
h i li i i
pertinent to this field, including popular literature, and newspapers
are just one of at least six forms of popular literature. As a result, the
process of searching and reviewing the pertinent literature can make
ll f d h d l“
or break how well the Legal Card is played. (See reference 2 in the ”
Background Materials for further discussion of “the literature”.)
and crosswalks.

Basics of a Duty of Care/Standard of Care Action?
Basics ofMunicipal Interest Involvingof Care Action?
Scoping a Duty of Care/Standard Pedestrians:
Simple Arithmetic Test

S h An incident similar to one in
An incident li i
i similar to one in
i
a newspaper article in Tables 5 and 6
+
Incident associated with material or a function in Table 2
ll f d h d = l“ ”
Possibility that duty of care and/or standard of care obligation
was not met, and contributed to the incident.
and crosswalks.

Burden of Care Questions that Are Central to
Examination for Discovery, Expert Witness Reports,
and Evidence‐in‐Chief and Cross‐Examination Activities
S h i li i i
Q1A. What did you know,
and when did you know it?
Q1B. As a result of having that knowledge at that time, ”
ll f d h d l“
what effect did it have on how
you dealt with the burden of care situation?
and crosswalks.

S h i li i i
Q2A. What could you have known
and when could you have known it?
ll f d h d l“
what difference could it have made to how
and crosswalks.

S h i li i i
Q3A. What should you have known
and when should you have known it?
ll f d h d l“
what difference should it have made to how
and crosswalks.

Dealing with Municipal Failure to
Meet Duty of Care and Standard of Care
Obligations Affecting Pedestrians:
Still Want to Play the Legal Card?
S h i li i i
For anyone considering the decision to play the Legal Card as a
p gp , gg
means to deal with problems affecting pedestrians, I suggest that
ll f d h d l“
having due regard for Tables 1, 2, 3, 4, 5, and 6, and Questions 1A ”
and 1B, 2A and 2B, and 3A and 3B may be instructive.
and crosswalks.

Background Materials
Duty of care and standard of care parameters were studied extensively and intensively
during both the design and pilot study phases of the Walking Security Index Project,
Search targets: commitments, policies, promises, pronouncements, the
S 1995h
1995‐2002. Viewers wishing to know more about that research may wish to examine the
2002 Viewers wishing to know more about that research may wish to examine
i li i i
several dozen project reports which are available via the City of Ottawa, the Ottawa
Public Library, the University of Ottawa library and other libraries in Canada, the United
States, and abroad, as well as in proceedings, readings, and journals. For this
presentation I reference several of my online publications which discuss conceptual
and/or operational aspects of the parameters, and may be of assistance to persons ”
ll f d h d l“
thinking about playing the legal card to deal with matters involving actual and potential
deaths, injuries, and other negative consequences associated with pedestrians using
such public transportation facilities as sidewalks, paths, bridges, roads, streets, highways,
intersections, and crosswalks. The materials are listed in chronological order.
intersections, and crosswalks. The materials are listed in chronological order.
and crosswalks.

Background Materials (Continued)
1. B. Wellar, 2002. Lessons Learned from the Walking Security Index (WSI) Project on How
to Achieve Street‐Smart Urban Transportation Improvements.
http://www.slideshare.net/wellarb/lessons‐learned‐from‐the‐walking‐security‐index‐
S wsi‐project‐on‐how‐to‐achieve‐streetsmart‐urban‐transportation‐improvements
h h i
h li i b i
2. B. Wellar, 2005. Geography and the Media: Strengthening the Relationship.
http://www.slideshare.net/wellarb/geography‐and‐the‐media‐strengthening‐the‐
relationship
p
ll f d h d l“ ”
3. B. Wellar, 2007. Adapting Walking Security Index Concepts and Procedures to Serve
and Promote the Mobility of Children.
http://www.wellar.ca/wellarconsulting/Mobility%20of%20Children.pdf
and crosswalks.
4. B. Wellar, 2007. Tips on Testifying as an Expert Witness.
http://www.slideshare.net/wellarb/aag‐2007‐tips‐for‐expert‐witness

5. B. Wellar, 2008. Methods and Techniques that Could be Used in Making Decisions
about Identifying, Adopting, or Implementing Sustainable Transport Practices.
http://www.wellar.ca/wellarconsulting/TC%20Project%20Research%20Report%201.pdf
S h i li i i
6. B. Wellar, 2009. Sampler of Commentaries on Methods and Techniques that Could be
Used in Making Decisions about Identifying, Adopting, or Implementing Sustainable
Transport Practices.
http://www.wellar.ca/wellarconsulting/TC%20Project%20Research%20Report%203.pdf
p // / g/ j p p
ll f d h d l“ ”
7. B. Wellar, 2010. Application of Walking Security Index Research to Standard of Care
Situations and Analysis. Federation of Urban Neighbourhoods.
http://www.urbanneighbourhoods.ca/
and crosswalks.
8. B. Wellar, 2010. Careless Driving and Public Safety: Curtail the Pandemic by Raising the
Careless Driving and Public Safety: Curtail the Pandemic by Raising the
Bar.
http://www.transport‐action.ca/dc/TACarelessDrivingandPublicSafety.pdf

9. B. Wellar, 2010. Measures To Mitigate Intersections that Are Conflict Zones for
Pedestrians. Background Guide for Barry Wellar’s Panel Presentation, Jane’s Walk,
Ottawa, 2010.
S h // h lk i /d b li / i i
http://www.janeswalkottawa.ca/database/view.asp?item=DOC‐012
10. B. Wellar, 2010. Measures To Mitigate Intersections that Are Conflict Zones for
Pedestrians. Remarks for Panel Presentation, Jane’s Walk, Ottawa, 2010.
http://www.janeswalkottawa.ca/database/view.asp?item=DOC‐013
p // j / / p
ll f d h d l“ ”
and crosswalks.

Barry Wellar Bio‐Note
Barry Wellar, PhD, MCIP, Professor Emeritus at the University of Ottawa
and Principal, Wellar Consulting Inc., is Distinguished Research Fellow at Transport Action
Canada (http://www.transport2000.ca/), and Policy and Research Advisor for the
SFederation of Urban Neighbourhoods (h li // b
d h f b i i i
hb h d (http://urbanneighbourhoods.wordpress.com/). As
hb h d d /)
Principal Investigator for the Walking Security Index project (funded by the former
Region of Ottawa‐Carleton and then the (new) City of Ottawa, 1995‐2002), he designed
ten indexes and three macro indexes to measure aspects of intersection design and
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performance that affect pedestrians’ safety, comfort, and convenience at signalized
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intersections, and he has published more than 100 papers, articles, reports, etc., on ”
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topics related to the use of public transportation facilities by pedestrians. His current
consulting activities include serving as an expert witness for duty of care and standard of
care assignments involving pedestrians, vehicle operators, and vehicle passengers. More
and crosswalks. be found at wellarconsulting com
bio‐information can be found at wellarconsulting.com.
bio information can

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