COURT FILE NO.: CV-14-500114

DATE: 20211108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANTHONY IMENEO SIMAS, GARY MAITO SIMAS, TERESA IMENEO, NELIO IMENEO SIMAS, personally, SABRINA SIMAS, SERGIO SIMAS, infants under the age of eighteen years by their Litigation Guardian TERESA IMENEO

Plaintiffs

– and –

ANTONIO IMENEO, MARIAROSA IMENEO, and GERARDA IMENEO, AUSTIN SMITH, WAL-MART CANADA and INTEX RECREATION CORP.

Defendants

M. Elkin, for the Plaintiff, Anthony Simas

I. Kirby, for the Defendant, Austin Smith

HEARD: By videoconference June 7-11, 2021

CHALMERS, j.

REASONS FOR DECISION

OVERVIEW

[1] For convenience and not out of disrespect, the parties and witnesses will be referred to in these Reasons by their first names.

[2] This action arises out of a tragic accident that occurred on July 3, 2013. Anthony Simas, age 17, was visiting the farm owned by his aunt, Mariarosa Imeneo. On the property was an above ground pool. At one side of the pool there was a small wooden platform. Anthony entered the pool from the wooden platform. He struck his head on the bottom or side of the pool. He was rendered a quadriplegic

[3] The above ground pool was purchased by Mariarosa’s spouse, Antonio Imeneo about one month prior to the accident. The pool was erected and installed by Antonio and their son, Jerry Imeneo. When the pool was installed there was no wooden platform at the side of the pool. A few weeks before the accident, Anthony, his brother Nelio, Jerry and Jerry’s friend, Austin Smith were at the farm. Jerry decided to build a wooden platform or deck for the pool. Austin helped Jerry, Anthony and Nelio move the platform and place it next to the pool. On the day of the accident, Anthony was using the pool with Jerry and Jerry’s spouse, at the time of the incident, Kristina Imeneo.

[4] At the opening of trial, I was advised that the Plaintiffs had entered into a Pierringer Settlement Agreement with all Defendants other than Austin. The Plaintiffs agreed that the liability, if any, of Austin is limited to his several liability. I was also advised that if there is any finding of liability on Austin, the parties agree on the specific amount to be paid by Austin. The amount of the contributions by the settling Defendants, and the amount Austin agreed to contribute, if there is a finding of liability, were not disclosed.

[5] For the reasons set out below, I find that the Plaintiff failed to establish liability on Austin.

THE ISSUE

[6] The issue to be determined in this action is as follows:

a. Is there any negligence on the part of Austin Smith that caused or contributed to the Plaintiff’s injuries and damages arising out of the pool incident on July 7, 2013?

[7] There are two factual disputes that affect the finding of liability:

a. What, if any, involvement did Austin Smith have in the design, construction and placement of the wooden deck? and

b. What maneuver was Anthony trying to perform when he went into the water at the time of the accident?

THE EVIDENCE

[8] The Plaintiff called Anthony and Nelio. The Defendant called Jerry, Austin and Kristina.

The Plaintiff’s Witnesses

i) Anthony Simas

[9] Anthony is a very impressive young man. He is well-spoken and provided his evidence in a straightforward manner. I found him to be personable and likeable. Although he clearly sustained serious and life changing injuries, he has maintained a positive outlook. He has given hundreds of speeches to share his story and his message that no matter what you have gone through, you can still be happy and live your life to the fullest.

[10] Anthony was born on September 13, 1995. He was 17 at the time of the accident. Before the accident he was healthy. He worked out and was in good shape. He had completed high school. He was enrolled in an electrical apprentice program at Humber College.

[11] Mariarosa, owns a hobby farm in the Mount Forest area. It is 100 acres, consisting of open fields, trails and trees. Anthony started going to the farm when he was 13 years old. He usually went with his younger brother, Nelio and his cousin, Jerry. They would go most weekends. He enjoyed helping out around the farm. He would cut the grass and help feed the animals. He would go dirt biking on the trials.

[12] A couple of weeks before the accident, an above ground pool was installed at the farm. Anthony was not involved in the purchase of the pool. He believes his uncle, Antonio and Jerry bought the pool. The first time he saw the pool it did not have a deck or platform located beside it. There was a ladder that was used to get in and out of the pool.

[13] Anthony used the pool every weekend from when it was first installed to the time of his accident. He was very familiar with the pool. He knew how deep it was. The water came up to somewhere between his waist and armpits.

[14] Anthony was not aware there was a warning label on the side of the pool near the ladder. He stated that in the entire time he used the pool he did not see the warning. He also stated that no one warned him to not dive or jump off the platform into the pool. He did not receive any instructions on how to use the pool.

[15] Austin was a friend of Jerry’s and would frequently go to the farm on weekends. Austin was at the farm on the weekend the platform was built. Anthony testified that at some point that weekend there was a discussion about building a deck they could use to jump into the pool. Anthony testified that Austin took an active part in building the platform. He believes it took one to two hours to build the deck.

[16] The platform was built in the garage. Anthony testified that the four of them carried the platform to the backside of the pool. According to Anthony, the distance was about 50-60 feet from the garage. It was very heavy, and Anthony remembers struggling. The platform was placed close to the pool. Anthony was not involved in choosing the location of the platform.

[17] Anthony testified that once the deck was in position, all four of them went swimming. They climbed onto the deck and jumped into the pool. Anthony does not remember anyone diving into the pool. Between the date the deck was completed and his accident, a few weeks later, Anthony was in the pool maybe five or six times. He stated that everyone who used the pool used the platform to get in and out.

[18] Anthony testified that he saw Austin in the pool four or five times before the accident. Anthony’s evidence with respect to Austin swimming in the pool was impeached on cross-examination. On his Examination for Discovery, Anthony testified that he did not think he went swimming with Austin. Anthony testified at trial that his discovery evidence was not correct, and he must not have remembered correctly at the time of the discovery. He now says he “definitely” went swimming with Austin before the accident.

[19] The accident occurred on Sunday, July 7, 2013. Austin was not at the farm that weekend. Anthony, Nelio and Jerry arrived at the farm the day before. The extended family was there. All the cousins were using the pool. They were jumping from the platform. Anthony does not recall anyone diving into the pool from the platform. He does not recall any warnings about how to use the pool or the platform.

[20] The extended family left Saturday afternoon, leaving only Anthony, Jerry and Jerry’s wife Kristina at the farm. At some point on Sunday, Kristina suggested they go for a swim. All three of them were in the pool. They may have been throwing a beachball or going in a circle to make a whirlpool. Anthony and Jerry were jumping off the deck. Anthony denies diving off the platform when the three of them were swimming. He also denies that Kristina gave him any warning about the dangers of diving into the pool. Anthony testified that he knew of the risks of diving into a shallow pool. He stated that he never dove into a pool or body of water before the accident.

[21] There was a large inner tube in the pool. Anthony could not recall who got the inner tube. They had used the inner tube on prior occasions for floating or jumping on. At one point, Jerry held the tube perpendicular to the water. Anthony said he wanted to try to jump through the tube. He does not remember jumping off the deck. He does not know if he may have slipped. He conceded on cross-examination that it was possible he may have tried to dive though the tube headfirst. His next memory was floating upside down in the water. His body was limp. He could not turn over. He felt as if an electric shock went through his body. Anthony stated that he had “no clue” if he hit his head on the bottom or side of the pool.

[22] Jerry came to him and turned him over. He got Anthony to the platform. Someone called the ambulance. Anthony was put on a back board and taken to the hospital. Anthony did not know if anyone rode in the ambulance with him. The ambulance call report states that the accident occurred when the patient attempted to dive from a “makeshift deck”. Anthony was able to speak to his parents and they met him at the hospital in Mount Forest. He was transported by ambulance to a hospital in Hamilton. He was told that he had sustained a fracture of his neck at the C5 vertebrae. He remained in the hospital and in a rehabilitation hospital until December 2013.

ii) Nelio Simas

[23] Nelio Simas was born on October 1, 1999. He graduated from grade 12 and then began working full-time in construction. Nelio is a very likeable young man. He clearly supports his older brother and wants to assist him in this action.

[24] Nelio first met Austin maybe a year before the accident. He knew Austin was a friend of Jerry’s. Austin was almost always at the farm when he and Anthony were there.

[25] The pool was installed a few weekends before the accident. Before the platform was built, the pool’s ladder was used to get in and out. One weekend, about two weeks before the accident, he was involved in building the platform. He would get a piece of wood or a tool if he was asked. The platform was built in the garage. It took maybe an hour or two to complete. According to Nelio, both Austin and Jerry were in charge of the project.

[26] After the wooden platform was built, Anthony, Nelio, Jerry and Austin carried the platform to the pool. The platform was placed at the back of the pool. After the platform was in position, all four of them went swimming. Nelio testified that he saw Austin climbing on the platform and swimming in the pool.

[27] Nelio testified that he saw Austin swimming multiple times. He could not recall whether any of those times was after the platform was built. At trial he stated that he could not recall whether Austin was at the farm between the date the platform was built and the accident. He later corrected this evidence to state that he can now recall Austin being at the farm on at least one occasion during this time.

[28] On the weekend of the accident, Nelio went up to the farm on Saturday. There were a lot of children at the farm and everyone was using the pool. People were jumping off the platform into the pool. Parents were close by supervising the children. He could not recall any warnings about the risks of jumping or diving into the pool. Nelio stated that he never saw anyone dive into the pool.

[29] Nelio left the farm on Saturday afternoon, and was not there the next day when the accident occurred. He stated that the only information he has about the accident was from Anthony. Nelio did not know what Anthony was trying to do at the time of the accident.

The Defendant’s Witnesses

i) Jerry Imeneo

Preliminary issue

[30] Before trial, counsel for the Plaintiff advised that he intended to call Jerry as a witness as part of the Plaintiff’s case. On the first day of trial, counsel advised that he would not be calling Jerry as a witness. Counsel for the Defendant had served a summons to witness on Jerry. He took the position that he was entitled to cross-examine Jerry. Rules 53.07(1) and (2) of the Rules of Civil Procedure, R.P.O. 1990, Reg. 194, provide that a party may call an adverse party as a witness at trial. Rule 53.07(5) provides that the adverse party may be cross-examined by the party who called him as a witness and any other party who is adverse in interest.

[31] Austin had a Crossclaim against Jerry. As a result of the Pierringer Agreement the action was dismissed as against Jerry. Although no longer a party, Jerry was an adverse party at the time of the settlement. A party has a right to cross-examine another party at trial. This right cannot be lost as a result of the settling defendant entering into a Pierringer Agreement: Bucknor v. Ryder, 2001 ABQB 1008, 313 A.R. 352, at paras. 20-25. I permitted counsel for Austin to cross examine Jerry.

[32] Counsel for the Plaintiff also requested a right to cross-examine the witness. Jerry was a Defendant at the time of the Pierringer Agreement. There is an issue as to whether, as a result of the Pierringer Agreement, Jerry continued to be adverse to Anthony. Counsel for Austin consented to Plaintiff’s counsel cross examining Jerry. In light of the consent, I permitted counsel for the Plaintiff to also cross-examine Jerry.

Testimony

[33] Jerry was born on July 11, 1986. He was almost 27 when the accident occurred. I found him to be a credible and reliable witness. His evidence was straightforward, and he did not try to minimize his involvement either with respect to the construction of the wooden platform or his role in the accident.

[34] Jerry testified that he has been friends with Austin for the past 17-18 years. For many years they would go to his mother’s hobby farm on weekends. Jerry’s cousins, Anthony and Nelio would frequently be at the farm at the same time. He described the group as the “fourman crew”. At the farm they did everything together. They would ride dirt bikes and ATVs, go hunting and fishing, and would do chores around the farm. Jerry testified that Austin enjoyed cutting the grass with the riding mower.

[35] In June 2013, the decision was made to purchase an above-ground pool. The pool was purchased by Jerry’s father, Antonio. The pool was about 15 feet in diameter. The water depth was 42 inches. The pool came with an instruction manual. Jerry read the manual for the set-up of the pool. The manual also included safety instructions which included a warning that there should be no diving into the pool. The pool also had a warning on its side, near the ladder. The warning included a picture that indicated there should be no jumping or diving.

[36] People using the pool would enter using the ladder or by climbing over the edge. Jerry stated that the ladder was flimsy. A few weeks before the accident, Jerry decided to build a platform for the pool. He stated that the purpose of the platform was for his wife and mother to sit at the edge and dangle their feet in the water. At the time his wife, Kristina was eight months pregnant. His mother had some health issues. He also testified that the platform made it easier to get in and out of the water. He stated that the platform was not for jumping or diving into the pool.

[37] The deck was built in the garage. It was roughly square. It was the same height as the pool. Jerry testified that it was his idea to build the platform. It was his design. His tools, including a skilsaw and nail gun, were used. He used spare wood that was on the property.

[38] On the weekend the platform was built, Jerry, Anthony, Nelio and Austin were at the farm. Jerry testified that everyone would have helped with building the platform. He could not recall who did what. Both counsel cross-examined Jerry with respect to his discovery evidence. Counsel for the Defendant put the following discovery evidence to Jerry:

Q. 287. A platform? Okay. And who put that platform together?

A. Me, Anthony and Nelio.

Q. 288. There was not another guy there? I thought there was four who put it together.

A. There might have been but I doubt he was helping.

[39] Counsel for the Plaintiffs put the following discovery evidence to Jerry:

Q. 374. Okay. So in exhibit 1A you’ll see there’s a structure that you described as a platform.

A. Yes.

Q. 375. Who put that together? I think we’ve already gone through that; Anthony, Nelio, you and Austin, right?

A. Yes.

[40] I am of the view that Question 375 was improper. The question states that Jerry had previously testified that Anthony, Nelio, and Austin assisted him in building the deck. In fact, Jerry had not previously testified that Austin assisted. At Question 288, Jerry did not refer to Austin and stated that he doubted a fourth person was helping.

[41] At trial, Jerry testified that he believed Austin played some role in the construction of the deck but does not recall what Austin did. Jerry conceded that he could not remember what happened in the garage when they were building the platform. He stated that Austin was in and out of the garage. Jerry testified that Austin may have gone back to cutting the grass or riding his dirt bike at the time the platform was being built.

[42] Although Jerry was uncertain about Austin’s role in building the platform, he stated that Austin helped carry the platform from the garage to the pool. According to Jerry, the deck weighed about 200-300 pounds and that it took all four of them to carry the deck to the pool. Jerry directed where the platform was placed.

[43] After the platform was put next to the pool, Jerry, Anthony and Nelio went into the pool. They used the platform to jump into the pool. Jerry stated that everyone who used the pool was told not to dive into the pool from the platform. He could not specifically recall if he told Anthony to not dive into the pool. Jerry was not sure if Austin ever swam in the pool. Austin did not like the water. He had a nickname – the Cat – because he did not go into the water.

[44] The accident occurred on the afternoon of Sunday, July 7, 2013. Austin did not go to the farm that weekend. The only individuals at the farm on the day of the accident were Jerry, Anthony and Kristina. They went swimming. They were in the pool for about an hour before the accident. Jerry could not recall whether Anthony was diving into the pool. He testified that he was not sure if Kristina said anything to Anthony about diving into the pool before the accident. Jerry was referred to the following exchange from his Examination for Discovery:

Q. 627. Were you getting in and out, jumping in and out?

A. Anthony did it twice, I did it once.

Q. 628. What did he do?

A. He got out and dove in and that’s when my wife told him, “I’m a lifeguard. This is not safe, to be diving into the shallow water. I had to watch a video when I did my course of a man jumping into an ocean or a lake and getting his head stuck in the sand because it was shallow.”

[45] Jerry confirmed that that was his sworn testimony at the time of the discovery. He also confirmed that there was no reason to believe that his discovery evidence was anything other than the truth.

[46] Shortly before the accident, Kristina got out of the pool. Anthony went to the garage and returned with a large pink inner tube. He threw the inner tube into the water. He asked Jerry to hold the tube, so it was perpendicular to the water. Anthony did not tell Jerry what he was going to do. Jerry held the tube perpendicular to the water. Anthony tried to dive through the inner tube. It was when he tried to dive headfirst through the tube that the injury occurred.

[47] After the accident the ambulance was called. Kristina rode in the ambulance with Anthony to the hospital.

ii) Austin Smith

[48] Austin was born on July 9, 1988. He was just two days short of his 25th birthday at the time of the accident.

[49] Austin has been good friends with Jerry since he was around 16 years old. He had been to the farm many times before the accident and would go almost every weekend. He always went with Jerry. They would go dirt biking, hunting and do chores. He enjoyed cutting the grass with a riding lawnmower. Jerry’s cousins Anthony and Nelio were usually at the farm when he was there.

[50] In 2013 an above ground pool was put up on the farm. He was not involved in the decision to purchase the pool. He did not see the owner’s manual. When the pool was first put up there was no wooden platform. It was Jerry’s idea to put a wooden platform beside the pool so Jerry’s wife and mother could sit on the edge and put their feet in the water. Austin did not provide any advice about putting up the platform. He stated that he was not involved in the design of the platform.

[51] Austin was at the farm the weekend the platform was constructed. The platform was built in the garage. Austin was cutting the grass on the trails at the time the platform was being built. He came into the garage on a couple of occasions while it was being built. He went in once to fill the riding mower with gas. He was there for five to ten minutes. He denied that he provided any assistance. He returned to the garage after he finished cutting the grass. The platform was pretty much finished at that time.

[52] Austin assisted in moving the platform from the garage to the pool. He stated that the platform was heavy, and they used a tractor to move the platform. According to Austin, the platform was put in the bucket of the tractor. Jerry drove the tractor and Austin, Anthony and Nelio steadied the platform so it did not fall out of the bucket. The platform was put down close to the pool. Austin stated that Jerry directed where the platform was to be placed. The four of them moved the platform into position next to the pool. Austin helped level the platform. Austin testified that it took just a few minutes to move the platform into position.

[53] In cross-examination, Austin was asked whether it crossed his mind that a platform close to the pool would permit someone to jump or dive into the pool. He testified that at the time he did not feel that the platform was a dangerous situation. After Anthony’s accident, Austin stated he would not put the platform close to a pool.

[54] After the platform was placed next to the pool, Austin saw Jerry’s mother and Kristina sitting on it with their feet in the water. He did not recall anyone jumping off the platform into the water. He did not recall anyone warning about jumping or diving into the pool. He did not go swimming and believes he rode his dirt bike after the platform was moved next to the pool.

[55] Austin did not return to the farm between the day the platform was built and the day of the accident. He had no information with respect to the circumstances of the accident.

iii) Kristina Imeneo

[56] Kristina Imeneo was born on January 31, 1988. She gave her evidence by videoconference. During her testimony, she was frequently interrupted by her two small children. She appeared to be distracted. Her evidence was vague, and she confessed throughout her testimony that she had very little memory about many of the events. As a result, she was not very precise in her answers and frequently stated that she could not remember.

[57] Counsel for the Plaintiffs suggested in cross examination that Kristina has an acrimonious relationship with her ex-husband, Jerry and his family. Kristina stated that she was a victim of domestic abuse; however, notwithstanding her experience she testified that she currently has a cordial relationship with her ex-husband. She denied that she is vindictive and stated that she is being truthful in her evidence. In any event, there is no suggestion that there was an acrimonious relationship between Kristina and Jerry’s family at the time of the accident. Immediately after the accident, she advised the ambulance attendants that the injuries occurred when Anthony dove headfirst into the pool. I find that Kristina has provided consistent evidence with respect to the circumstances of the accident.

[58] Kristina confirmed that the Imeneo family decided to get an above ground pool for the farm. They wanted a pool to cool down. At the time she was seven to eight months pregnant with her first child. Kristina testified that Anthony, Nelio and Jerry were involved in setting up the pool. She later stated in cross-examination that she was assuming Anthony and Nelio were involved in the set-up because they were always around. Finally, she stated that she was not sure who set-up the pool.

[59] Within a few weeks of the purchase of the pool, Jerry decided to put a platform by the pool. The platform was so she could sit at the edge of the pool and put her feet in the water. It was easier for her to get into the pool using the platform. She believed that Anthony, Jerry and Nelio built the platform. She confirmed that on the weekend the platform was built, Austin was at the farm. She does not believe Austin helped build the platform. She testified that she remembers Austin on a riding mower cutting the grass. She had come into the garage while they were building the platform and did not see Austin. She conceded in cross examination that she would have been in the garage for only four minutes out of the one or two hours it took to build the platform.

[60] After the platform was built, it was moved to the side of the pool. She believes Jerry, Anthony and Nelio moved the platform. She could not recall seeing Austin help move the platform.

[61] Kristina was excited about using the platform. After it was put next to the pool, she sat on the edge of the platform with her feet in the water. She sat with her mother-in-law. She recalls seeing the four boys using the pool, including Austin.

[62] On the weekend of the accident, the extended family were at the farm. She did not believe Austin was there that weekend. Everyone was using the pool. She saw Anthony jumping and diving into the pool. No one warned Anthony about diving into the pool.

[63] On Sunday, July 7, 2013, only Kristina, Jerry and Anthony were at the farm. They decided to go swimming. They were in the pool for about one hour before the accident. Anthony was on the platform jumping and diving. She recalls saying to Anthony and Jerry that they are both big guys and diving into a four-foot pool is dangerous, and that they could be paralysed. Kristina had experience with pool safety. She completed the National Lifeguard program and had certifications in Red Cross, CPR and First Aid. She worked as a lifeguard when she was in high school. In her capacity as a lifeguard she was involved in a prior spinal cord injury.

[64] At some point Anthony put a medium sized inner tube in the water. She gave a last warning. She said she got out of the pool because she did not want to watch anymore. As she was leaving the pool Anthony said watch one last one. She stopped and turned around. She was about five feet from the pool. She saw the inner tube in the pool. She believes the tube was flat on the surface of the water. She saw him dive through the tube. She was immediately aware Anthony had sustained a serious injury.

[65] Kristina called 9-1-1. She was provided with some instructions on how to care for Anthony while they waited for the ambulance. When the ambulance came, she spoke with the ambulance attendants and told them that Anthony dove into the shallow pool. She said the same thing at the hospital.

[66] Kristina testified that after the accident, members of Jerry’s family asked her to say that Anthony jumped, and did not dive into the pool. She testified that this conversation took place when Anthony was in the hospital.

[67] Counsel for the Plaintiff argued that Kristina’s evidence that members of Jerry’s family asked her to say Anthony did not dive into the pool was not anticipated. He sought leave to call reply evidence. Although I was not provided with a copy of Kristina’s willsay statement, both counsel agreed that the statement made reference to her being asked to change her story. Plaintiff’s counsel received the willsay statement about 10 weeks before the start of trial. I conclude that the issue of the family members trying to influence Kristina is not a new issue and ought to have been anticipated by Plaintiff’s counsel. However, the evidence in-chief enlarged and expanded on the evidence. I permitted Plaintiff’s counsel to call the Imeneo family members in reply. Counsel for the Plaintiff did not call the reply evidence. Counsel for the Defendant agreed to not ask for an adverse inference for the failure to call reply evidence.

[68] It is my view that nothing turns on this alleged discussion. There is no suggestion that Anthony or his immediate family spoke to Kristina and asked that she change her story. Even if she had been asked to change her story, she did not do so. Her evidence has been consistent throughout. Immediately after the accident, she advised the ambulance attendants that the injuries occurred when Anthony dove into the pool. She also told the ER personnel that Anthony dove into the pool. Her evidence at trial remained the same.

ANALYSIS

Position of the Parties

[69] The Plaintiff argues that Austin was involved in the construction of the wooden platform and assisted in moving the platform beside the pool. Although there may be a factual issue with respect to the role Austin played in constructing the platform, he admits that he assisted Jerry in placing the platform next to the pool. The Plaintiff argues that it is reasonably foreseeable that if a platform is placed next to a shallow pool, someone will use the deck to dive into the pool.

[70] The Defendant argues that there is no evidence that Austin was involved in the design or construction of the platform. Jerry testified that he designed the deck and was assisted in the construction by Anthony and Nelio. On discovery, Jerry testified that he “doubts” Austin was involved. Although there is insufficient evidence to establish that Austin was involved in the construction of the platform, it is conceded that Austin helped move the platform to beside the pool. The Defendant argues that the accident was not caused by the location of the platform but by the actions of Jerry and Anthony on the day of the accident.

What, if any, involvement did Austin Smith have in the design, construction, and placement of the wooden deck?

[71] There is no evidence that Austin had any involvement in designing the platform. The uncontradicted evidence is that Jerry decided to build the platform and that he designed the platform.

[72] Anthony and Nelio testified that Austin assisted in building the platform. Jerry testified at trial that he believed Austin assisted but could not recall what role he played. On cross examination he was taken to his discovery evidence when he testified that he “doubted” Austin was helping with the construction. I do not put any weight on his discovery evidence in which Jerry confirmed counsel’s statement that he had already stated that Austin was involved in the construction. What the witness had said earlier had been misstated by the lawyer. He had not stated that Austin was involved in building the platform, but instead that he “doubted” Austin was involved.

[73] Austin denied any involvement in building the platform. He stated that he was cutting the grass at the time the platform was being built. He has maintained this position throughout the action.

[74] I find that Austin was not involved in the design or construction of the platform. In any event, there is no evidence that the design or construction was defective or contributed to the accident.

[75] Although I find that Austin was not involved in the design or construction of the platform, I find that he was involved the moving the platform and placing it next to the pool. The platform was either carried from the garage to the pool as Anthony, Nelio and Jerry testified, or a tractor was used to move the platform close to the pool as Austin testified. Regardless, Austin testified that he helped place the platform next to the pool. Austin and Jerry both testified that Jerry directed where the platform was to be placed.

What maneuver was Anthony trying to perform when he went into the water at the time of the accident?

[76] Just before Anthony was injured, an inner tube was placed in the pool. Kristina testified that she believes the inner tube was flat on the water. Anthony testified that the tube was held by Jerry perpendicular to the water. Jerry testified that Anthony asked him to hold the inner tube perpendicular to the water. Jerry testified that he did not know why Anthony asked him to hold the tube in this manner. Jerry stated that he did not know what Anthony was planning to do. Anthony testified that he cannot remember what happened next. He stated that he may have slipped or jumped into the pool. Anthony did not disagree with the suggestion made in cross-examination that he may have dove into the pool.

[77] Jerry testified that as he held the inner tube perpendicular to the water, Anthony tried to dive though it with his hands and headfirst. Kristina was only five feet away from the pool when the accident occurred. She testified that she saw Anthony dive into the pool.

[78] It was suggested by counsel for the Plaintiffs in his closing, that Anthony may have been jumping to land on top of the inner tube. If in fact he intended to jump onto the tube, there would be no reason for it to be perpendicular to the water. In any event, the evidence of Jerry and Kristina is that the accident occurred when Anthony dove headfirst through the inner tube. They were the only individuals present at the scene of the accident who can remember what happened. Their evidence on the circumstances of the accident is uncontradicted.

[79] I find that the accident occurred when Anthony attempted to dive headfirst into the pool. He may have been trying to dive through the inner tube. When he dove, he hit his head on the bottom or side of the pool.

[80] I am satisfied that Anthony knew the risks of diving into the pool. He had been in the pool many times before the accident and knew that the water was about three and a half feet deep. The evidence of Kristina was that on the day of the incident she told him that diving into the pool is dangerous. This was confirmed by Jerry in his discovery evidence.

Is there any negligence on the part of Austin Smith that caused or contributed to the Plaintiff’s injuries and damages?

[81] The Plaintiff argues that Austin created a dangerous situation when he assisted in placing the platform next to the pool. The Plaintiff states that Austin knew or ought to have known that the platform was an invitation to dive into the shallow pool and that the risk of harm emanating from the dangerous situation was reasonably foreseeable.

[82] The Plaintiff relies on the two-part “Anns” test to determine whether there is a duty of care: Anns v. Merton London Borough Council [1978] A.C. 728 (H.L.). The first stage of the Anns test focuses on the issues of foreseeability and proximity. Was the harm that occurred the reasonably foreseeable consequence of the defendant’s actions, and is there sufficient proximity to give rise to a duty of care? The proximity analysis focuses on the factors arising from the relationship between the plaintiff and defendant: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 30. The second stage of the Anns analysis asks whether there are countervailing policy considerations that negate the duty of care.

[83] In Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, the Court affirmed the Anns test and set out three requirements to establish liability, at para. 52:

i. Reasonable foreseeability;

ii. Sufficient proximity; and

iii. The absence of overriding policy considerations which negate a prima facie duty.

[84] In Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, the Supreme Court stated:

There is no suggestion that Odhavji was intended to change the Anns test; rather, it merely clarified that proximity will not always be satisfied by reasonable foreseeability. What is clear is that at stage one, foreseeability and factors going to the relationship between the parties must be considered with a view to determining whether a prima facie duty of care arises. At stage two, the issue is whether the duty is negated by other, broader policy considerations: at para. 12.

Proximity Analysis

[85] The Plaintiff argues that Anthony’s injury was the reasonably foreseeable consequence of Austin’s act of assisting in moving the platform next to the pool. The Plaintiff states that the location of the platform created a dangerous situation. The platform made it easier for someone to dive into the shallow pool from the platform. The injury occurred when Anthony dove from the platform, and therefore the injury was foreseeable.

[86] The Plaintiff also argues that the relationship between Austin and Anthony was of sufficient proximity to establish a prima facie duty of care. Austin assisted in moving the platform next to the pool. He knew the platform would be used by Anthony and others to get into the pool. Austin’s act in helping move the platform next to the pool was an overt act that directly caused foreseeable harm, and therefore Austin is liable for the injury.

[87] I am not satisfied that Anthony’s injury was reasonably foreseeable or that the relationship between Austin and Anthony is sufficiently proximate to establish a prima facie duty of care.

[88] I find that Austin’s only involvement was assisting Jerry, Anthony and Nelio to move the platform next to the pool. Jerry designed the platform and directed where the platform was to be placed. This occurred several weeks before the accident. Austin was not at the property between the date the platform was placed next to the pool and the accident. He was not an owner or occupier of the premises and had no control over the use of the pool or the platform.

[89] After the platform was placed near the pool, it was used on multiple occasions. On the day of the accident, Jerry held an inner tube perpendicular to the water and Anthony dove headfirst into the pool. Austin was not at the pool on the day of the accident. He did not know how Anthony was using the pool. He did not have an opportunity to warn Anthony or prevent him from using the pool if he failed to follow instructions.

[90] Plaintiff’s counsel invites me to conclude that as a matter of common sense, it is inevitable that individuals will dive from a platform located next to a pool and that an injury is reasonably foreseeable. Counsel argues that the platform is an invitation to dive into the pool, creating a dangerous situation.

[91] I do not conclude that a platform adjacent to a pool is an invitation to dive into the pool. Virtually every pool has a deck or platform. An in-ground pool will have a deck around the entire perimeter. Above ground pools may have a deck or platform around all or part of the pool. The deck or platform is a means to enter and exit the pool. Here, the platform did not have a diving board or slide which could create invitation to either dive or slide into a shallow pool. I am of the view that a deck or platform around a pool, without more, does not create a dangerous situation.

[92] I am of the view that a platform next to a pool is a safety feature in that it allows a person in a pool to safely get out of the pool. A platform next to a pool is not a risk for individuals using the pool with due care for their own safety. I was not referred to a case that imposed liability simply for having a deck or platform next to a pool. There is no suggestion that the location of the platform was a breach of the Building Code.

[93] I find that the accident was caused by Anthony’s decision to attempt to dive headfirst through an inner tube into a shallow pool. Anthony had been in the pool on multiple occasions before the accident. He was aware of the depth of the pool. He was aware of the risks of diving into the pool. Based on the evidence of Jerry and Kristina, Anthony was warned repeatedly to not dive into the water the day of the accident.

[94] I conclude that Anthony’s injury was not a reasonably foreseeable consequence of Austin’s assistance in moving the platform next to the pool. I conclude that there is insufficient proximity to establish a prima facie duty of care.

Policy Considerations

[95] The second stage of the Anns test involves policy considerations; how finding a duty of care impacts other legal obligations, the legal system and society more generally. Had I found that there was sufficient proximity and foreseeability to establish a prima facie duty of care on Austin, the duty is negated by public policy considerations.

[96] I am of the view that if having a deck or platform adjacent to a pool is the basis for a finding of negligence, tens of thousands of homeowners will be required to reconfigure their pools. Virtually all pools have a deck or platform as a means to enter and exit the pool.

[97] I conclude that Austin is not liable for this unfortunate accident. Anthony attempted to dive into a shallow pool when he knew it was unsafe to do so. Anthony’s injury was not a reasonably foreseeable consequence of Austin assisting Jerry, Anthony and Nelio to move the platform next to the pool. It is my view that there is insufficient proximity between Austin’s acts and Anthony’s injury to establish a prima facie duty of care.

DISPOSITION

[98] I dismiss the Plaintiff’s action.

[99] The Defendant is presumptively entitled to his costs of the action. Counsel advised at the conclusion of trial that they expect to agree on the issue of costs. If for any reason, the parties are unable to agree, counsel may arrange a case conference with me.

DATE: November 8, 2021