ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-01-5830
DATE: 2013-06-14
B E T W E E N:
ERIC WINTERS, MARGARET WINTERS, LUCAS WINTERS, RACHEL WINTERS, SAMUEL WINTERS, JOYCE FLAHERTY, Executrix and Trustee under the Last Will and Testament of JOSEPH FLAHERTY, deceased, and JOYCE FLAHERTY
D. Smye and J.B. Cavanagh, for the Plaintiffs
Plaintiffs
- and -
THE CORPORATION OF HALDIMAND COUNTY, THE TOWN OF HALDIMAND, THE MUNICIPAL CORPORATION OF THE VILLAGE OF CAYUGA, GRAND ERIE DISTRICT SCHOOL BOARD
B. McCall and S. Handler, for the Defendants
Defendants
HEARD: November 19, 20, 21, 22, 23 and 26, 2012
PARAYESKI, J.
Overview
1On September 28, 2001, the plaintiff Eric Winters fell from a tree into which he ascended, and was rendered paraplegic. He was 16 years old at the time. The tree was located in a park owned and maintained by one or more of the defendants, The Corporation of Haldimand County, The Town of Haldimand, and the Municipal Corporation of the Village of Cayuga. I shall refer to these defendants collectively as “Haldimand County”, as they refer to themselves in their common Statement of Defence.
2The plaintiffs other than Eric Winters claim under the provisions of the Family Law Act. The action as against the defendant Grand Erie District School Board was dismissed without costs by means of a consent order granted by Cavarzan, J. on April 13, 2005.
3The parties have agreed upon damages, leaving only the issue of liability to be addressed in this decision.
Basic Facts
4The tree in question was a swamp willow with what appears to be multiple trunks or large limbs growing from at or near its base. The entire tree grew out of the bank of the Grand River. The river forms the rear side of the Kinsmen Park located in the Village of Cayuga. One of the tree’s trunks or large limbs grew away from the river and extended almost horizontally over a lawn covered portion of the park. The tree was known by Eric and some of his fellow teenagers as “The Chilling Tree”. They used it as a place to congregate in relative isolation from others. They would climb or walk up the trunk or limb described above (and hereinafter called “the limb”), and sit on it. There they would talk and socialize. A number of people could sit comfortably upon the limb, the sat upon portion being roughly eight feet above the lawn.
5Prior to Eric’s unfortunate accident, use of the tree was not considered by him or other witnesses to be dangerous or risky. Only one witness recalled a prior injury involving the limb wherein somebody had allegedly twisted an ankle when falling out of it while “horsing around”. There had been no complaints to the municipality about the tree. The tree had been used for multiple years by teenagers as described.
6Kinsmen Park in 2001 was described as being “passive”. Its facilities were limited mainly to trees, lawn, and some picnic tables near the parking area (although even that was disputed in the evidence). Some preparatory work had been done toward the installation of a skateboard pad, but it was not useable as such at the time. The lawn was cut, garbage cans were emptied, and debris was removed. Trees were trimmed to keep them from blocking walkways or to remove dead wood that might be considered dangerous.
7As is common in many small towns or villages, there was not an abundance of places for teenagers to gather. There was no mall in town. Aside from the tree in question, teenagers would congregate at a gazebo in the town centre or on an abandoned railway bridge crossing the Grand River. There was an arena and a ballpark, at which team sports were played.
8Eric and his immediate circle of friends were interested in skateboarding and snowboarding more so that in organized sports. Skateboarding in Cayuga in 2001 was done mainly in the streets or in commercial parking lots, which did not endear its participants to the citizenry or merchants. This is why Eric worked with a committee which proposed the placement of the skateboard pad mentioned above.
9On the day of the accident, classes at Eric’s secondary school were to be limited to a half day to permit the students to attend a fair at nearby Caledonia. Eric and some of his friends decided to skip classes entirely, and a group of three, including Eric, ended up at the Kinsmen Park. The other two were Nathan Park (who, by the time of the trial, was deceased) and Daniel James Gudgeon (known as “DJ”).
10When the three got to the park, Eric ascended the “Chilling Tree” limb over the lawn and sat upon it. Nathan and DJ engaged in “sword fighting” with sticks nearby. There was a great deal of unclear and contradictory evidence about the next few moments. What is clear is that Eric fell from the tree landing on his back and shoulders. His legs came toward his face. He described this as being “folded in half”. He felt pain in his back. He sat up and then laid back down. He thought, unfortunately accurately, that he was paralyzed.
11The mechanics that immediately preceded the fall itself are in dispute. At the trial, Eric testified that when he was sitting in the tree he decided to get down from it. He turned his body counterclockwise and prepared to slide down off the limb as he had done on previous occasions. His intention, as I understand it, was to slide on his belly and hang from the limb by his hands so that he could dangle approximately three feet off the lawn before dropping to it. His trial testimony was that he was grasping a branch of the tree in his right hand to steady himself. The branch broke, and he began his fall. In cross-examination, his answers about which hand held the branch was less certain. He acknowledged that he knew that the branch could not have held his weight if he were to hang from it alone. He acknowledged that he could have gotten out of the tree by going down via the route he had taken to get into it.
12DJ’s trial evidence was much more circumscribed than what he said in two prior statements given to investigators on October 3rd, 2001 and March 20th, 2002, respectively. At trial, DJ said that he was aware that Eric had gotten up into the tree. DJ was focused on his play fighting with Nathan. He heard the sound of a branch breaking and looked toward the tree to see Eric in the air rotating backwards and then hitting the ground in such a way that “he folded in half backwards”. DJ testified that he did not know if Eric was standing or sitting before starting to fall. He could not say in which direction Eric was faced immediately before falling.
13In his statement of October 3rd, 2001, DJ told investigator Wayne Moore that Eric “was standing on the branch that sticks out the farthest. He reached up to grab a dead branch. He was just hanging on it. It broke and he fell backwards…”.
14In his statement of March 20th, 2002, DJ told investigator D.T. Gilbertson “I saw Eric climb the tree, go out on a branch and then he jumped up, up and out to grab onto a limb higher than the one he was standing on. The limb Eric was standing on was about six and one half to seven feet off the ground. The limb he was standing on was higher than my height. As soon as he grabbed onto the branch, his feet left the branch he was standing on. As soon as he did this, the branch he was holding broke. Eric fell backwards onto his neck onto the ground.”
15A great deal was made at the trial concerning the apparent narrowing of DJ’s version of the event. At one point, DJ stated that he had given an account or accounts of what he thought had actually happened putting “it together” “to help”.
16At the hands of skilled trial counsel, DJ’s evidence about what happened immediately before Eric’s leaving the tree was pushed and pulled in multiple directions, rendering it unhelpful to either side, and ultimately, to me.
17Margaret Winters, Eric’s mother, testified at trial. She was not present when the accident happened. She acknowledged that during her examination for discovery on January 5th, 2005 she had answered a question in such a way as to indicate that she was under the impression, based upon what he had told her, that Eric was standing just before he fell from the tree. At trial she retreated from that answer rationalizing that she had been prevented from giving a complete answer during discovery.
18Taking the evidence as a whole, I am prepared to accept Eric’s version of the events. There was evidence that while teenage boys generally may be risk-takers, that description did not fit Eric at the time. As a skateboarder, he likely knew a fair bit about the dangers of falling, and so it seems to me, on the balance of probabilities, that he was unlikely to reach or jump for a branch that he said he knew would not hold his weight, and attempt to hang or swing on it while some eight feet off of the ground. Although he had a small amount of marijuana and a marijuana pipe on his person at the time of the accident, there is no evidence of his having been impaired to any degree whatsoever.
Issues to be Determined
Is Haldimand County liable to the plaintiffs for breaching its duties under the Occupier’s Liability Act?;
To what degree, if any, was Eric Winters contributorily negligent in respect of the accident?
Analysis
19Section 3(1) of the Occupier’s Liability Act provides as follows:
“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 onto the premises and the property brought on the premises by those persons are reasonably safe while on the premises.”
20It is not contested that Haldimand County was an occupier of Kinsmen Park at the relevant time. As such, it is bound to meet the standard created by the Act, failing which liability will attach to it.
21The standard is one of reasonableness. That is not necessarily the same thing as being obliged to do whatever perfect hindsight would indicate might have avoided the injuries in first instance.
22I do agree with the plaintiff’s submission that in order to determine liability appropriately, I must consider the evidence contextually.
23The plaintiffs have helpfully articulated what they say were the breaches of Haldimand County’s duties under the Act as follows:
failing to have in place a reasonable system to inspect and monitor the use of Kinsmen Park by teenagers;
failing to trim the “Chilling Tree” to prevent it from being easily climbed and used as a sitting perch or bench;
failing to remove the “Chilling Tree” entirely; and/or alternatively
failing to implement and enforce rules against climbing trees in Kinsmen Park.
24I shall address the alleged breaches separately.
1. Failing to have in place a reasonable system to inspect and monitor the use of Kinsmen Park by teenagers.
25I presume that the plaintiffs mean to focus upon use of the “Chilling Tree”. The evidence is that “generations” of teenagers had climbed into the tree and sat on the relatively horizontal trunk or limb to socialize. None of the witnesses considered that activity to be dangerous or risky before Eric’s terrible accident. No injuries relating to the tree had ever been reported to the County, and no complaints about it had been made, again prior to the incident in question. While I agree that a lack of complaints does not absolve an occupier from addressing issues on its property, I do not consider it reasonable to require a small municipality to spy upon its teenage residents to determine what they should do in their leisure time. Part of the attraction of the “Chilling Tree” was that it afforded some measure of privacy from adults.
26I think it noteworthy that Eric’s own mother did not know that her son and other teenagers had been climbing the subject tree for literally years before his accident. This was the case despite her being a frequent visitor to Kinsmen Park.
27The County was present at the park, through its employees, on at least a weekly basis during business hours. No municipal witness had ever seen anyone climbing into the “Chilling Tree” before the subject incident.
28I consider that practice to constitute reasonable monitoring of the park and its use in the prevailing circumstances. The standard for the municipality ought not to be higher than that of the reasonably prudent parent, which Ms. Winters appears to have been.
29I reject the plaintiff’s submissions that the fact that the County provided less than ideal recreational facilities for all of its residents, regardless of their interests, has a meaningful bearing upon this, or other issues. A municipality, qua occupier or otherwise, is not obliged to entertain its residents in a general sense. Even if there were such a duty, however, I should not be prepared to make a finding against the County in the absence of evidence that it was deliberately underfunding recreation relative to similar entities.
2. Failure to trim the “Chilling Tree” to prevent it from being easily climbed and used as a sitting perch or bench.
30The part of the tree in question did facilitate easy access. It was used with some frequency as a place for teenagers to gather, and sit upon. When sitting, they were roughly eight feet above the park’s lawn.
31The defence called an arborist who testified that the relatively horizontal trunk or limb from which Eric had fallen could have been removed from the subject tree without harming it. The question is, however, whether it would have been reasonable for the County to have done so in all of the circumstances in evidence.
32It is plain that one can be injured by falling off of any horizontal structure which is more than a few feet off the ground. Before Eric’s accident, no one considered the “Chilling Tree” to be dangerous, most certainly including him. In hindsight, of course, it could be.
33I do not consider it unreasonable for the County to have left the trunk or limb in place. Given the state of knowledge that existed prior to Eric’s accident, it was no more unreasonable to leave the tree as it was than it was to leave any other horizontal surface from which one might be injured by falling. I have already determined that the County’s monitoring of the tree’s usage was reasonable in the circumstances. It is not reasonable to expect an occupier to eliminate all possible risks.
34I understand the plaintiff’s argument that the “Chilling Tree” was sufficiently unique in its shape that it warranted special attention relative to other structures or objects including, of course, trees. In this regard, I was appropriately referred to the decision of Byers, J. in the case of Ricard v. Trenton (City), and reported at [2000] O.J. No. 4700. While dismissing a claim brought against a municipality in respect of the death of a child who had been tree-climbing, His Honour, in obiter, stated that:
“It may well be that, on occasion, certain trees by their nature, or by their locations, become a haven for tree climbers. And, should that occur, it might well be that a duty to do something applies.”
35In the present case, the “Chilling Tree” was somewhat but not utterly unique in shape, and it had been a teen hangout for years. However, those years passed without incident or complaint. The County did not know about the tree’s usage, nor, as I have found, did it fail in any duty to ascertain that usage. Knowledge, actual or reasonably implied, of course, goes to the underlying issue of foreseeability or the lack thereof.
36As such, I believe that the present circumstances are sufficiently different from Byer, J.’s hypothetical example as to be appreciably distinguishable. I say this bearing in mind that the hypothetical situation in question is not as fully described as one might hope. In any event, the passage appears to address the notion of foreseeability, upon which I have just commented.
3. Failing to remove the “Chilling Tree” altogether.
37I believe the same analysis applies to this part as to part 2 above. In any event, there is no evidence which suggests anything inherently dangerous about the “Chilling Tree” beyond the trunk or limb in question. Trees, being, by their very nature, things which can be climbed, and therefore fallen from, are potentially harmful. However, they are also valuable and attractive elements of the landscape, and are not reasonably subject to destruction simply because it is hypothetically possible for someone to be harmed by misusing them.
38While Haldimand County did remove the entire tree following the accident involving Eric, the removal had nothing to do with public safety.
4. Failing to implement and enforce rules against climbing trees in Kinsmen Park.
39As I have already observed, Eric was not known for taking risks. It is possible, therefore, that he might have abided by a municipal prohibition against tree climbing. That said, he also chose to ignore a Criminal Code prohibition against the possession of marijuana.
40The question, of course, is whether it would have been reasonable to call upon the County to pass a by-law prohibiting tree climbing in the park, put signs in place to that end, and then patrol for compliance. In the circumstances of this case, I am not prepared to find that such was required here. The County does not have limitless resources. It ought not to be obliged to manifestly forbid all activities which, with hindsight, might prove to be dangerous. There has to be a reasonable limit to such prohibitions on human activity.
41One wonders whether, if the tree climbing was curtailed, the town’s teenagers might have gravitated to using their other sanctuary, that being the unused railway bridge over the Grand River. That, it seems to me, would have created an even greater potential danger. In a perfect world, of course, all risks could be avoided, and no accident such as the tragic one in this case would ever occur. That is not the standard required of occupiers, however.
Contributory Negligence
42Although my decision is that the plaintiff’s action is to be dismissed, I shall rule on the issue of contributory negligence in the event that my liability ruling is overturned.
43The plaintiffs fairly and appropriately concede that Eric should bear “a substantial degree of liability for this accident”. He appears to have been a mature and intelligent 16 year old at the time. He knowingly engaged in an activity which his counsel has described as “inherently dangerous”. The defendants argue that Eric’s contributory negligence should be assessed at 90 percent. I presume that this assessment is based upon the defence position that Eric was standing and reaching or even leaping for a branch when he fell. I have rejected that position for reasons already stated. In light of the facts as found by me, I assess Eric’s contributory negligence at 67 percent.
44The plaintiff’s action is dismissed. Damages are assessed at the agreed upon figures.
45If the parties are unable to agree with respect to the issue of costs, they may make brief written submissions to me in that regard. Each set of submissions, if any, shall be no more than three typewritten pages in length, not including a costs outline. There shall be no attachments to the submissions beyond the costs outlines save for Rule 49 offers. The defendants shall have until July 31st, 2013 to make their cost submissions, if any, and the plaintiffs shall have 15 days thereafter to respond. Any cost submissions are to be sent to my attention at the John Sopinka Court House in Hamilton.
PARAYESKI, J.
Released: June 14, 2013
COURT FILE NO.: CV-01-5830
DATE: 2013-06-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ERIC WINTERS, MARGARET WINTERS, LUCAS WINTERS, RACHEL WINTERS, SAMUEL WINTERS, JOYCE FLAHERTY, Executrix and Trustee under the Last Will and Testament of JOSEPH FLAHERTY, deceased, and JOYCE FLAHERTY
Plaintiffs
- and –
THE CORPORATION OF HALDIMAND COUNTY, THE TOWN OF HALDIMAND, THE MUNICIPAL CORPORATION OF THE VILLAGE OF CAYUGA, GRAND ERIE DISTRICT SCHOOL BOARD
Defendants
REASONS FOR JUDGMENT
PARAYESKI, J.
Released: June 14, 2013