By Matt Lalande in Slip and Falls on January 25, 2022
Throughout the seasons, temperatures in Ontario can fluctuate anywhere between -30 to +35 degrees Celsius (did you know that the coldest day in Ontario was recorded to be -58.3 on January 23 1935 in Iroquois Falls? Or that the hottest day ever recorded was that same year – with a heat wave reaching a whopping 42.2 degrees Celsius). Fluctuating patters are in fact, the norm and because of this pavement and asphalt surfaces on road and parking lots are subjected to an incredible amount of stress and damage – thus becoming a danger for pedestrians if left in states of disrepair.
In our practice, we see an incredible amount of personal injury cases that are not only caused by the failure of property owners to reasonably maintain their parking lots during winter conditions, but also property owners who fail to reasonably maintain the structure and stability of their parking lots throughout years of use and abuse by pedestrians, vehicles and more so the cold weather, which accelerates the deterioration of pavement and asphalt.
Most parking lots in Ontario are made of asphalt. As opposed to concrete, (which is made up of crushed rock and sand aggregate bound together with cement and water) asphalt is made up of an aggregate – such as sand, gravel or crushed stone – as well as a petroleum-based binding component that is called bitumen. Bitumen is what gives asphalt it’s black colour and what smells like motor oil when put down. Asphalt is used mostly in Canada. Asphalt is used in most parking lots in Ontario (as opposed to concrete) due to it’s flexibility and ability to conform to external elements.
Asphalt parking lots in Ontario must have major load bearing ability (given that the average car is 4000 lbs) and must support the heaviest of vehicles – particularly in commercial parking lots, which see a considerable amount of 18-wheeler and other trucking traffic. They are typically large in size and require greater durability to handle the constant flow of heavy traffic. As a result – a major long-lasting support is required underneath the asphalt which complies with it’s durability and weight capacity requirements.
When constructing a parking lot, a strong subbase is normally first put down, which is typically made up of heavy gravel. Without a strong subbase, asphalt pavement would crack and collapse under the weight of vehicles. The gravel is then compacted with a vibrating roller. Then, a base coat is put down, which adds a layer of strength by binding the sub-base to the top of the asphalt coat. While residential asphalt driveways in Canada are typically 2” thick, commercial parking lots are typically thicker – dependent on the type of traffic being accommodated.
Vehicle and heavy loads are not the only cause of concern for asphalt parking lots – water is also a major risk factor. Asphalt parking lots in Ontario are required to have a proper drainage system to prevent both interior pooling/ponding of water and exterior flooding – which can damage structural integrity. Commercial parking lots must be constructed to re-direct water (normally in Ontario, a 2% minimum slope is required in commercial parking lots) to a catch basin system to prevent structural damage (along with some porous asphalt paving aggregates which can safely absorb some excess water on the property).
There are many reasons why asphalt deteriorates in Ontario – such as overloading, seepage, improper or poor surface drainage, insufficient maintenance poor design or adverse climate conditions (i.e. major temperature fluctuations).
In terms of adverse climate conditions, there’s no doubt that in Ontario, the weather cycle accelerates asphalt deterioration. Cold weather can often cause issues such as thermal cracking, subgrade softening, freeze-thaw damage – all of which can shorten the life expectancy of a parking lot.
How does asphalt deteriorate?
The severe climate change and weather in Ontario causes thermal contractions in the asphalt which over time, stresses the tensile strength its materials. This, in combination with heavy traffic loading over years, can cause severe asphalt cracking which, in turn, helps water seep through into the pavement structure. When this happens, water will cause a reduction in subbase strength and eventually, water seepage will cause subbase softening, loss of stability, asphalt depression and collapse. This can occur quicker in some areas of the province, depending on the type of soil subgrade and its moisture/water content – which in turn, would be affected bas would fine sand.
Engineers that we have retained in the past on parking lot slip and fall cases have educated us and the various types of common asphalt cracking that occurs in Ontario:
Alligator / Fatigue cracks – are cracks that are interconnected like a puzzle. These types of cracks are often called alligator cracks. Normally the extreme cold, heavy vehicle loads and a thinner asphalt surface are the cause of the team cracking. Fatigue cracks can lead to major structural failure due to extreme water seepage. Potholes are normally caused by fatigue cracking which has degraded the asphalt.
Block cracks – are cracks that appear in larger interconnected rectangle pieces. Water can also see through the cracks in block cracks and cause sub-asphalt degrading.
Edge cracking – edge cracking is very common and cold climates. Edge cracking can occur if the asphalt surface abuts a dirt or muddy terrain. The water in the dirt or muddy terrain escapes into the base ‘neath the asphalt edges, and enters through the cracks, softening the subgrade and base below the asphalt.
Longitudinal cracks – are cracks that form in the direction or pattern of traffic flow. In roadways, longitudinal cracks normally occur parallel with the centreline. In commercial parking lots, longitudinal cracks often occur within the roadway between the parking stalls.
Transverse cracks – are cracks that occur normally perpendicular to the pavement’s centre-line or across parking lot spaces. Transverse cracks often occur because of asphalt expansion and contraction during the freeze thaw cycles.
When snow melts or rain falls on an asphalt surface, some of it infiltrates into the ground, some of it evaporates and the remainder runs off from higher points to the lower point as a result of gravity. To achieve adequate drainage, parking lots are typically sloped between 1% and 3% in Ontario. Sloping is generally directed towards sewers and catch basins. When asphalt is damaged or left in a state of disrepair, surface waterflow can be compromised and pooling or ponding can result in areas which are meant to be drained. A major problem then occurs when the pooled ice and snow melts during warmer days, only to refreeze during cooler days – and become a serious danger for pedestrians. You can see the ponding in the photo – which is from an actual case. The ponding occured beside the vehicle, froze over, was covered with dusted snow, and caused a resident to fall and suffer serious injuries.
Also, ponding and pooling can cause further and faster deterioration of the parking lot. When the asphalt is cracked, standing water can seep down into the parking lot’s base and subbase, which are made from compacted aggregates. These aggregate bases often have very good load-bearing strength, but they are also very vulnerable to erosion from water. As more water seeps through, the sub-base may erode to the point of collapse, causing the asphalt to collapse. This problem can be even more serious in winter. As water caught within the sub-base freezes, it expands, placing serious stress on the surrounding aggregates and asphalt – only to contract in the warmer weather.
When cracks form in asphalt, water seepage will occur. Then, during the freeze thaw cycles, there is an expansion and contraction of the water within the subbase. The expansion and contraction over years causes the subgrade and subbase to deteriorate and cave-in which in turn causes the surface asphalt or pavement to weaken. Then, because of the deterioration of the subgrade over time and the weight of vehicles, the asphalt material breaks down and depresses inward. Overall, potholes occur because of cracks in the asphalt, the seepage of water, the freeze-thaw cycle, and the weakening of materials and structural degrading over time.
Unlike winter slip and fall cases that involve winter maintenance negligence – such as snow removal and salt management – potholes in themselves and parking lots left in a state of disrepair are often the cause of many winter injuries. Potholes are typically bowl shaped depressions of varying sizes. They are usually caused by alligator cracking which has allowed asignificant water seepage over an extended period of time – often many years.
In Ontario, the winter weather is highly unpredictable. Climate change is leading to hotter, drier summers and milder winters – and causing temperatures to often drastically fluctuate in and out of normal range. Winter weather can be extremely volatile – and shift from snowy cold and stormy to unusually warm. Temperatures can easily range between -15 , sometimes climbing as high as above +10°C.
The problem with fluctuating winter weather is that potholes in parking lots that are left in a state if disrepair can often collect and accumulate rainwater and melting snow. On top of this, parking lots that suffer improper grading and water drainage issues can make things worse. Then, adverse weather conditions can cause accumulated pothole water to freeze and become extremely dangerous to pedestrians – particularly when frozen potholes are covered with a snowdrift. In our experience, most winter pothole cases that we see – are exactly that – potholes frozen over and hidden with covered snowdrift. The frozen potholes are left invisible to the eye and become an extreme slip and fall danger.
In Ontario, property owners must take reasonable care of their parking lots. Reasonable care, however, is not as simple as it sounds. What constitute reasonable care is very specific to each fact situation – meaning what is reasonable for one parking lot might not be reasonable for another. Secondly, parking lot owners need to promote what is called “positive action”. In other words, parking lot owners have an affirmative duty to make their parking lots reasonably safe in order to protect their customers from foreseeable harm. Taken together, positive action and affirmative duty means that parking lot owners must be vigilant in inspecting their premises on a regular basis to ensure that the property is kept in a state of good repair.
Lawyers often talk about “systems of inspection” meaning that property owners need to have policies in place – such as a system of regular and recorded inspection of a property – in order to minimize the risk of potential injuries to employees, customers and visitors. There needs to be set standards put in place in the inspections should be (in a perfect world) recorded in some sort of maintenance log or maintenance sheet. Remember, however, an undocumented visual inspection is not good enough.
A “system of inspection” must also adjust itself the different weather conditions – meaning that some type of properties, in the winter, may need to be inspected more vigilantly than other types of properties in the summer. There must be a system or a set schedule of inspection, which should be recorded and it must adjust to differing weather conditions.
In our experience, maintenance contractors for snow removal and ice management are often retained by property owners to clear and salt parking their lots. When things go wrong and people get hurt because of a structural defect like a pothole, property owners tend to try lay blame on their maintenance contractors for either not repairing the problem or in the alternative, blame the contractors for not bringing the problem to the owner’s attention. Unfortunately, many of the contracts that exist between parking lot owners and maintenance contractors are not clear in regards to what contractors need to do when they spot parking lot deficiencies – or in the alternative – contain hold harmless clauses that insulate property owners. Hold harmless clauses are indemnification clauses that absolves a second party of any blame for any loss caused by a first party’s negligence.
Is there a duty to report depressions and potholes that may hurt someone, to the property owner? Should the property owner be responsible for its own system of inspection, apart from retaining a contractor to remove snow and for salt management? This is why we say every case is different – and what constitutes “reasonable care” will be specific to its own fact situation.
Once potholes are formed, they absolutely need repair. If not, the asphalt will continue to erode, water will continue to seep in, the structural integrity of the subbase will continue to collapse and the potholes will eventually grow, become deeper and more dangerous both vehicles and pedestrians. Often times property owners to fail keep their premises in reasonably safe because repairing potholes is very expensive. In Ontario, it is not uncommon for parking lots to become so damaged over the years that they can’t be fixed by filling a few potholes but would actually need to be completely repaved – which is cost prohibitive. In some cases that we have seen, some parking lots were left to long exceed their lifespan of 20 to 25 years. If a property owner does not perform timely inspections, regular cleaning, high-quality repair (such at patching, sealing and crack filling) there will be an increase for premature deterioration of the asphalt surface and the maximum life expectancy can’t be achieved – thus becoming a serious danger to both pedestrians, vehicles and the cause of many slip and fall related injuries.
If you’ve suffered serious injuries in a winter parking lot accident, you may be entitled to compensation. Call as today 1-844-LALANDE or local in the Hamilton / Burlington / Niagara region at 905-333-8888 to your free consultation. You can also contact us confidentially by email through out website. Since 2003, we have represented countless slip involved victims who have been hurt in parking lot accidents. All of our consultations are 100% free and if we decide to work together, we will never ask you for money upfront.