A Vancouver man injured in a bike crash at Lost Lake last summer is suing the Resort Municipality of Whistler (RMOW) for what he argues was negligence.
According to the civil claim filed Oct. 31 in B.C.’s Supreme Court, Jonathan Neil McCurdy was biking on the Lost Lake Park trails on or about July 24, 2022 when he reportedly struck a damaged post, causing him to trip and fall. As a result of the accident, the plaintiff said he sustained a fractured left elbow, elbow joint diffusion, and a fractured left wrist, among other injuries.
The injuries have reportedly caused and continue to cause pain, suffering, loss of enjoyment of life, permanent physical disability, loss of earnings, both past and prospective, and a shortened working life, McCurdy claimed.
The suit contends the accident was caused by the negligence and/or breach of duty of the RMOW for, among other things, failing to ensure the site was free of a damaged post; failing to inspect, blockade and cordon off the applicable area; failing to mark or warn of the hazard; and for failing to instruct its employees and/or contractors as to proper procedures.
McCurdy is seeking both general and special damages, as well as past and future health-care costs related to the injuries.
In its response, filed Nov. 17, the RMOW denied any negligence or breach of duty on its part, arguing that the Lost Lake trails were “properly designed, maintained and inspected” and in “a reasonable condition” for their safe use.
“[N]o part of the Roadway constituted a risk, dangerous condition, unsafe condition or hazard, and the Municipality is not responsible in law for any injury, loss, damage or expense suffered by the Plaintiff, either as alleged or at all,” the filing read.
The response goes on to say that any injury sustained by McCurdy was caused or contributed to by his own negligence for, among other things, failing to pay proper attention; failing to keep his bike under control; riding his bike at an unsafe and/or excessive speed; failing to ride as near as practicable to the right side of the roadway; and failing to wear adequate safety equipment, including but not limited to, a helmet and/or protective clothing.
The RMOW also contended that McCurdy failed to take reasonable steps to mitigate his injury and losses, including failing to seek medical attention in a timely manner and/or failing to seek alternative employment.
Notably, it wasn’t the first time this year the RMOW was sued for an injury near Lost Lake.
On Jan. 21, 2022, Vancouver lawyer Gerard Cuttler filed a civil claim against the municipality after he was allegedly injured the prior summer. The suit contends that, on or about July 25, 2021, Cuttler was riding his bike on Lost Lake Road, south of Horstman Creek, when he approached a marked crosswalk and allegedly collided with a thin, unmarked rope strung to a sandwich board and was thrown off his bike.
Cuttler reportedly suffered, among other injuries, a broken left clavicle that required surgery; pain, stiffness and restriction of his left shoulder and arm; and bruised and painful ribs.
As a result of the injuries, the plaintiff said he has undergone and continues to undergo medical treatment; has lost income and income-earning capacity; and has experienced and continues to experience pain, discomfort and emotional upset.
He is seeking both general and special damages as well as health-care and other costs.
In its initial response filed Feb. 7, the RMOW countered Cuttler’s claims, contending that the roadway was “reasonably safe” and did not constitute a dangerous condition or unusual danger.
The municipality also said, if the plaintiff suffered any injury or loss as alleged, it was because Cuttler failed to take reasonable steps to mitigate the extent of such injury and loss for, among other things, failing to seek medical attention in a timely manner; failing to seek alternative training or employment “or in failing to return to his occupation in a timely manner.”
The suit took a turn last month when the RMOW filed a notice of application to be granted leave from the case and add a third party, LynSan Solutions, which was purportedly contracted by the municipality for its Western toad migration project.* Pique has since learned that LynSan was not involved in the contracted work, but rather local resident Liz Barrett, who will be added as a third party to the suit, confirmed the RMOW's lawyer.
As part of the service agreement, Barrett was tasked with educating and answering questions from the public about Western toads and their lifecycle; informing the public of all closures and detour routes; coordinating volunteers under the RMOW’s direction; and supervising toad-moving activities (every summer, a portion of Lost Lake’s trails are closed to allow for the migration of thousands of the tiny toadlets).
The RMOW argued in its initial application naming LynSan that the third party “owed a duty of care to post reasonable warning signs of the Rope and Obstacle that was placed across Lost Lake Road.” The municipality denies all responsibility and liability for the incident.
None of the above claims have been proven in court. Additional pleadings in the case will be heard next month.
*This story has been updated since publication to clarify that LynSan is not a third party in the civil suit.
