The War on Toboggans is not due to Lawsuits or the Courts

By: Patrick Brown |

Are municipalities getting nailed with lawsuits for kids and families tobogganing on city property?  Absolutely not! Are municipalities held responsible when they know someone will get hurt, but do nothing about it?  Sometimes, but it is extremely rare.

If there is a war by municipalities against tobogganing, don’t blame lawsuits.

Believe it or not, tobogganing cases going to court against a city or town are very rare.  Over the last 50 years, there have been less than a handful of reported decisions. In fact, the most recent case suggests very little exposure is created against a city or town when someone gets hurt tobogganing.

In September of 2014, the court released the De Cou v. Leamington decision. This case involved a lady who was sledding with her two boys when her sled hit something in the snow, catapulting her forward, and causing her to suffer injuries.  She sued the town of Leamington.   Leamington had no ban on tobogganing.  Although town officials were fully aware that the towns property was being used by tobogganers, the town did nothing to maintain the property.  The Court held that Leamington was not liable for the lady’s injuries.  Justice Thomas Carey stated that “sledding/tobogganing brings with it a foreseeable risk of falls, tumbles and detachment from one’s sled”.  He went on to state “going down a snow covered hill in February on a light piece of material (be it plastic, cardboard, Styrofoam or wood) is a typical Canadian winter experience. Falling off a sled is also part of that experience. I find that Ms. De Cou willingly assumed the known risk that she could be injured.”

The dismissal of the Leamington case was not novel. In Scoffield v. North York (Township) Public School Board, S. No. 20 a 15-year-old girl was tobogganing with friends on a hill behind her school.  She sued the Town of North York for the injuries she suffered. Although it was alleged that the area behind the school was in a state of ill-repair for not possessing a fence to block off access to the river, Justice Jeffrey held that “the accident did not happen by reason of this property not being fenced” and that “going over the bank was not of itself dangerous.” The Court found no liability on North York.

There are, in fact, very few cases where a City has been found responsible. When a city or town is found responsible, the facts are unusual and not your typical wintertime toboggan experience.  In 1986, thirty years ago, the Hewitt v. Etobicoke decision was released. In that case, the City allowed people on New Year’s Eve to access an unlit city controlled ski hill.  The tows to take skiiers up the hill had been turned off, but the City allowed a group of people up on the ski hill with toboggans. Years earlier, a boy had been killed in Toronto after hitting a park bench.  The Coroner gave the specific recommendation to avoid building obstacles in areas where people toboggan. In this case, the person riding the toboggan ran into one of the built-in light standards that was not that visible and sustained serious injuries.   This case has little relevance today, since ski hills are for skiers, and toboggan hills are for toboggans. Rarely do any operators try to mix the two.

The other case that has had recent attention is Uggenti versus the City of Hamilton.  This case in fact never went to court.

The parties agreed to a private arbitrator who happened to be a retired judge. It was a private arbitrator who made the decision.  The issue before the court was whether the City, after having agreed to use an arbitrator, should be bound by their decision. The Court held that it was. It is uncertain what the result would be if it went to trial.  Some of the facts around the case, again, are unusual. The arbitrator found that that the City knew they had a hidden ditch on their property. Not only were they aware of this hidden danger, they expressed concern about the danger it posed to people using the hill.  Despite this knowledge, they did nothing about it.

If there is a war on tobogganing, it is not because of lawsuits.

 

 

Patrick Brown

Patrick Brown

Principal Partner

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