Mallais et al. v. D.A. Campbell Amusements Ltd. [Indexed as: Mallais v. D.A. Campbell Amusements Ltd.]

84 O.R. (3d) 687

Court of Appeal for Ontario,

MacPherson, Sharpe and Juriansz JJ.A.

February 8, 2007

Torts -- Common carriers -- Amusement park ride is not "common carrier" for purposes of Canadian tort law -- Trial judge did not err in charging jury on ordinary negligence -- and occupiers' liability principles.

The plaintiff was injured on the defendant's amusement park ride. She brought an action for damages. The trial judge rejected the plaintiff's submission that the law governing common carriers should be applied to amusement park rides, so that the jury should be instructed that there was a heavy burden on the defendant to [page688] establish that it had used all due, proper and reasonable care and skill to avoid or prevent injury to the plaintiff, and that the care required was of a very high degree. Instead, the trial judge charged the jury only on the standard law of negligence and the Occupiers' Liability Act, R.S.O. 1990, c. O.2. The plaintiff appealed.

Held, the appeal should be dismissed.

The term "common carrier" should be given its natural and ordinary meaning. This meaning is clear, as reflected, for example, in the New Oxford Dictionary of English definition of "common carrier" as "a person or company undertaking to transport any goods or passengers on regular routes at agreed rates". An amusement park ride does not fit within that definition. Moreover, the underlying policy rationale for the imposition of the higher duty of care owed by common carriers did not apply to the situation in this case. Passengers place themselves in the care and control of a common carrier in the expectation that they will be conveyed safely to their destination. Safety is paramount and the common carrier assumes complete control to assure safety. The patron of an amusement ride expects a thrill (albeit a safe thrill) from the extremely unusual movement produced by the device. A safe thrill is inherently more risky than a safe ride. The amusement park patron is entitled to expect that the operator will take such care as in all the circumstances of the case is reasonable to ensure his or her safety. However, to go beyond that and impose on the operator the higher duty owed by a common carrier would be inappropriate.

APPEAL from the judgment of McIsaac J. of the Superior Court of Justice, sitting with a jury, dated May 11, 2005, dismissing an action for damages for personal injuries.

Cases referred to Day v. Toronto Transportation Commission, 1940 CanLII 7 (SCC), [1940] S.C.R. 433, [1940] S.C.J. No. 18, [1940] 4 D.L.R. 484, apld Balne v. Sunnyside Amusement Co. Ltd., 1931 CanLII 156 (ON CA), [1931] O.R. 549, [1931] O.J. No. 457, [1931] 4 D.L.R. 487 (C.A.); Falk (Guardian ad litem) v. M.F. Wagner Shows Ltd., 1994 CanLII 3031 (BC CA), [1994] B.C.J. No. 2201, 50 B.C.A.C. 79, 50 A.C.W.S. (3d) 717 (C.A.); Kauffman v. Toronto Transit Commission, 1960 CanLII 4 (SCC), [1960] S.C.R. 251, [1960] S.C.J. No. 5, 22 D.L.R. (2d) 97; Rizos v. Nyholt, 1967 CanLII 400 (SK QB), [1967] S.J. No. 40, 60 W.W.R. 1 (Q.B.), consd Other cases referred to Gomez v. Superior Court, 113 P. 3d 41 (Cal. 2005); Harlan v. Six Flages Over Georgia Inc., 297 S.E. 2d 468, 250 Ga. 352 (1982) Statutes referred to Occupiers' Liability Act, R.S.O. 1990, c. O.2 Authorities referred to Linden, A.M. and B. Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006)

C. Kirk Boggs and Cynthia B. Kuehl, for appellants. J. Douglas Wright, for respondent. [page689]

The judgment of the court was delivered by

MACPHERSON J.A.:--

A. Introduction

[1] For several centuries, the common law has developed special rules for common carriers, from stagecoaches to airplanes. The special rules cover the carriage of goods and people.

[2] In Canadian tort law, the special rules encompass both a higher standard of care and, arguably, a reverse onus, both of which are expressed in a succinct passage in Hudson J.'s judgment in the leading common carrier tort case, Day v. Toronto Transportation Commission, 1940 CanLII 7 (SCC), [1940] S.C.R. 433, [1940] S.C.J. No. 18, at p. 41 S.C.R.:

Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree.

(Citations omitted)

See also: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006) at pp. 276-77.

[3] The principal issue in this appeal is whether an amusement ride is a common carrier for purposes of Canadian tort law, thereby attracting the higher standard of care and reverse onus set out in Day.

B. Facts

(1) The parties and the events

[4] In the early evening of May 12, 2001, Kelly Mallais, Tavis McKenzie and their five-month-old daughter, Caleigh, went to the Upper Canada Mall in Newmarket on their way home from spending an afternoon videotaping planes at an airport with the family's new video-recorder.

[5] The respondent D.A. Campbell Amusements Limited had set up its portable carnival at the mall. Ms. Mallais, who was 30 years old, had been to the carnival every year that she had lived in the area.

[6] Ms. Mallais bought a ticket for a ride called the Sky Master, which she had ridden 17 or 18 times over the years. The Sky Master operates as two counter-rotating cars each containing eight rows, with two passengers per row. Each car is a steel cage. The cars swing back and forth, gradually ascending higher and higher before making a complete revolution. [page690]

[7] In 2001, the Sky Master had a U-shaped shoulder restraint that came over the head of the passenger. In the down position, the vertical portions of the "U" lay parallel to the torso of the passenger from the shoulder to the lap, with the horizontal portion lying across the thighs of the passenger. The restraint locked into a down position by a ratcheting system that clicked as the restraint locked into place. Once locked, the restraint could move more tightly against the passenger's body but could not be lifted up.

[8] Two individuals were responsible for running the ride -- an operator who sat in a booth and controlled the movement of the ride, and an attendant who took tickets and ensured that the restraints were being used properly. The attendant had to both push in on the restraint to ensure that it was snug to the body and pull on it to ensure that it had latched or clicked into place.

[9] Ms. Mallais claimed that the attendant did not ensure that she was properly restrained. She further claimed that she was tossed about during the ride and was injured as a consequence. She sued the respondent.

(2) The litigation

[10] The action was tried over 16 days in April and May 2005, before Justice John McIsaac and a jury of five jurors. [^1]

[11] After the completion of evidence and before the charge to the jury, the trial judge considered the appellants' submission that the law governing common carriers should be applied to amusement rides and that the jury should be instructed accordingly. The trial judge rejected this submission:

RULING:

The plaintiff seeks a pre-charge ruling that the instant amusement ride is governed by the law of common carriers. This would produce two effects. First it would impose a duty of extraordinary care upon the defendant. Second, it would reverse the onus of proof, see Planidin vs. Dykes, [1984] BCJ number 907, Supreme Court. There's no direct authority in Canada on this issue. The American jurisprudence has addressed the issue directly but is sharply divided, there are good arguments for both positions. The only case from Ontario that is of any indirect assistance is the judgment of our Court of Appeal in Balne vs. Sunnyside Amusements, 1931 CanLII 156 (ON CA), [1931] OR 549. Although divided on the outcome, that panel unanimously approached the duty on the owner/operator of a similar amusement ride to the one before this jury on the basis of principles of occupier's liability. There's no hint of any application of the law of common carriers. [page691]

For these reasons I am unable to accept the submissions of the Plaintiff. Accordingly the jury will be charged on principles of ordinary negligence and they will be told that the onus on liability lies with the plaintiff.

[12] As a result, the trial judge did not charge the jury that the respondent was a common carrier and on the related legal principles. Rather, the trial judge charged the jury only on the standard law of negligence and the Occupiers' Liability Act, R.S.O. 1990, c. O.2:

I've earlier described to you the onus of proof. In respect of this issue, the onus is on the plaintiffs to prove on a reasonable probability that Ms. Mallais was improperly secured in the seat and that this situation was a direct and contributing cause of her injuries.

A statute of Ontario, called the Occupier's Liability Act, imposes upon the defendant in this case the following duty, specifically section 3 subsection 1:

. . . An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises . . .

Subsection 2 states:

. . . The duty of care provided for in subsection 1 applies whether the danger is caused by the condition of the premises or by an activity carried on, on the premises . . .

So it relates to the state of the premises and any activities on the premises. Under the section I've just read to you, the duty of the defendant here was to take such care as was reasonably necessary in all the circumstances to see that persons like the plaintiff would be safe from injury when they came onto the premises. To put it another way, the duty cast upon the defendant was to make the premises reasonably safe for the plaintiff. I stress the words "reasonably safe."

The defendant is not required to protect the plaintiff against risks or dangers in which they could not reasonably have been aware; nor is there any obligation on the defendant to guard against any unusual or unreasonable use of the premises by the plaintiff.

[13] The jury was asked seven questions. The first question and the jury's answer were:

(1) Was the plaintiff's injury caused by the failure of the defendant to take such care as in all the circumstances of the case was reasonable to see that the plaintiff was reasonably safe while on the defendant's premises?

Answer: No

[14] As is common in civil negligence actions, the jury assessed damages even though it had found no liability on the part of the [page692] respondent. In response to questions 6 and 7, the jury assessed damages as follows:

[QL:GRAPHIC NAME="84OR3d687-1.jpg"/]

[15] The appellants appeal the judgment with respect to both the trial judge's ruling on the common carrier issue and the jury's assessment of general damages of $4,000.

C. Issues

[16] The appellant advances three issues on the appeal:

(1) Did the trial judge err in refusing to charge the jury that the respondent was a common carrier and on the related legal principles?

(2) Was the jury's assessment of general damages unreasonable?

(3) Is a new trial necessary?

D. Analysis

(1) Common carrier

[17] The obvious starting point for consideration of whether an amusement ride is a common carrier for purposes of Canadian tort law is the definition, both general and legal, of the term "common carrier".

[18] The New Oxford Dictionary of English, 1998, defines "common carrier" as "a person or company undertaking to transport any goods [page693] or passengers on regular routes at agreed rates". The same dictionary defines the verb "transport" as "take or carry (people or goods) from one place to another by means of a vehicle, aircraft, or ship".

[19] The ITP Nelson Canadian Dictionary of the English Language: An Encyclopedic Reference, 1997, defines "common carrier" as "[o]ne that is in the business of transporting the public, goods, or messages for a fee".

[20] Black's Law Dictionary, 8th ed., defines "common carrier" as "[a] commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee."

[21] It is clear from these general and legal definitions of "common carrier" that it would be a long stretch to bring most amusement rides, including the stationary Sky Master, within a fair reading of the definitions. The use of the words "transport" and "on regular routes" in the definition of "common carrier" and the words "from one place to another" and "by means of a vehicle, aircraft, or ship" in the definition of "transport" strongly suggests movement from one geographic location to another. The Sky Master does not involve such an activity.

[22] The appellants attempt to overcome this definitional starting point by pointing to case law that, they submit, supports a broadening of the notion of common carrier to include amusement rides.

[23] The appellants candidly assert that there is no Canadian jurisprudence that has explicitly considered whether amusement ride operators are common carriers. However, they rely on four cases to suggest such a linkage: Balne v. Sunnyside Amusement Co. Ltd., 1931 CanLII 156 (ON CA), [1931] O.R. 549, [1931] O.J. No. 457 (C.A.); Falk (Guardian ad litem) v. M. F. Wagner Shows Ltd., 1994 CanLII 3031 (BC CA), [1994] B.C.J. No. 2201, 50 B.C.A.C. 79 (C.A.); Kauffman v. Toronto Transit Commission, 1960 CanLII 4 (SCC), [1960] S.C.R. 251, [1960] S.C.J. No. 5; and Rizos v. Nyholt, 1967 CanLII 400 (SK QB), [1967] S.J. No. 40, 60 W.W.R. 1 (Q.B.).

[24] Balne does not assist the appellants. It is an amusement ride case. However, it is clear that it proceeded as a standard negligence and occupiers' liability case. One judge, Middleton J.A., did cite a common carrier authority, but he did so in the midst of his discussion of the doctrine of latent defect.

[25] The trial judge in this case considered Balne in his ruling. For ease of reference, I set out again what he said:

The only case in Ontario that is of any indirect assistance is the judgment of our Court of Appeal in Balne vs. Sunnyside Amusements, 1931 CanLII 156 (ON CA), [1931] OR 549. Although divided on the outcome, that panel unanimously approached the duty on the owner/ operator of a similar amusement ride to the one before this jury on the basis of principles of occupier's liability. There's no hint of any application of the law of common carriers. [page694]

[26] The appellants contend that the last sentence in this passage is in error because Middleton J.A. referred to one common carrier case in his reasons (four judges wrote separate reasons). In my view, even if a single reference on a different issue to a common carrier case could be said to rebut the "no hint" language in the trial judge's ruling, the appellants' contention amounts to a mere quibble. The overall thrust of Balne was accurately captured in the trial judge's ruling; Balne is an ordinary negligence and occupiers' liability case.

[27] The same is true of the British Columbia case, Falk. Although, it was a case dealing with an amusement ride, it proceeded, entirely, on the basis of ordinary negligence and occupiers' liability principles.

[28] Nor does Kauffman assist the appellants. In Kauffman, three of the five judges held that an accident on an escalator should be assessed under the common carrier standard of care. The appellants contend that the rationale for extending the notion of common carrier applies with equal force to an amusement ride.

[29] I disagree. The escalator in Kauffman was not just any escalator, such as one commonly seen in a mall or a department store. Rather, it was an escalator owned and operated by, and on the premises of, the Toronto Transit Commission. As expressed by Kerwin C.J., at pp. 252 and 254, the appellant "alighted from a north-bound subway train at the St. Clair Avenue station, all of which was part of the transportation system operated by the respondent, Toronto Transit Commission, in the City of Toronto. . . . I take it that the respondent was a carrier of the appellant for hire". In the present case, there is no link of any kind between the respondent's amusement ride and a transportation enterprise.

[30] The final case relied on by the appellants is the decision of Tucker J. of the Saskatchewan Court of Queen's Bench in Rizos. In that case, the plaintiffs (a mother and her two-year-old son) were injured when they were thrown out of a small train that transported passengers to various venues at a zoo and amusement park near Saskatoon. In his reasons, the trial judge mixed the legal principles relating to ordinary negligence cases and common carrier cases. On the whole, however, the trial judge treated the train more as a mode of transportation than an amusement ride. Accordingly, Rizos, at least in part, does support the appellants' position in this case.

[31] In summary, the decisions of this court in Balne and the British Columbia Court of Appeal in Falk are opposed to the appellants' position. The decision of the Supreme Court of Canada in Kauffman does not assist the appellants. Only the decision [page695] of the Saskatchewan Court of Queen's Bench in Rizos provides a measure of support for the appellants' argument.

[32] Because there is no Canadian case directly on point, both parties referred to the extensive American jurisprudence. Interestingly, there is a sharp division in the jurisprudence.

[33] In some jurisdictions, courts have adopted the purpose test and held that amusement rides serve a different purpose than common carriers and, therefore, the standard of care is the ordinary negligence standard: see, for example, Harlan v. Six Flags Over Georgia Inc., 297 S.E. 2d 468, 250 Ga. 352 (1982).

[34] In other jurisdictions, the courts have articulated the control test and held that since amusement rides, like common carriers, are controlled by their operators, they should be subject to the higher standard of care that applies to common carriers: see, for example, Gomez v. Superior Court, 113 P. 3d 41 (Cal. 2005).

[35] The American case law was put before the trial judge who noted the sharp division and observed "there are good arguments for both positions". I agree. However, in the end I do not think that tests such as the purpose and control tests should be central to the interpretation of a longstanding, well-known and, ultimately, simple term like "common carrier". With respect to such a term, the primary focus should be on its natural and ordinary meaning. In my view, this meaning is clear, as reflected in the general and legal definitions set out at the start of my analysis. Returning to the first of those definitions, the New Oxford Dictionary of English defines "common carrier" as "a person or company undertaking to transport any goods or passengers on regular routes at agreed rates". Ms. Mallais' ride on the respondent's Sky Master does not fit within this definition.

[36] Moreover, I am not persuaded that the underlying policy rationale for the imposition of the higher duty of care owed by common carriers applies to the situation before us. Passengers place themselves in the care and control of a common carrier in the expectation that they will be conveyed safely to their destination. Safety is paramount and the common carrier assumes complete control to ensure safety. The patron of an amusement ride, like the Sky Master, expects a thrill from the extremely unusual movement produced by the device. A safe thrill, no doubt, but a safe thrill is inherently more risky than a safe ride. The amusement ride patron is certainly as entitled to expect that the operator will "take such care as in all the circumstances of the case is reasonable" to ensure his or her safety. However, to go beyond that and impose on the operator the higher duty owed by a common carrier would be inappropriate.

[37] Accordingly, the trial judge's charge to the jury in terms of ordinary negligence and occupiers' liability principles was correct. [page696] In reaching this conclusion, I observe, parenthetically, that the trial judge's charge on these principles necessarily placed a high standard of care on the respondent amusement ride owner/operator.

(2) General damages

[38] In light of my proposed disposition of the first issue, this issue does not arise.

(3) New trial

[39] In light of my proposed disposition of the first issue, this issue does not arise.

E. Disposition

[40] I would dismiss the appeal.

[41] The parties are agreed that the successful party is entitled to costs of $25,000. Accordingly, I would order costs to the respondent of $25,000 inclusive of disbursements and GST.

Appeal dismissed.

[^1]: One juror was disqualified partway through the appellant's case. The disqualification is not an issue in this appeal.