Tobogganing is a beloved winter activity for many Canadians, both young and old. However, most people zipping down hills at high speed rarely think about the potential of injury.
The reality is that approximately 1,100 Albertans have landed in the emergency room for injuries stemming from tobogganing in recent winters. Some of these injuries have been serious, such as femur fractures, perforated lungs, and head and spinal cord injuries, including quadriplegia.
Designated Toboggan Hills
Calgary, like many municipalities in Alberta and across Canada, has designated areas where tobogganing is permitted. The hills are evaluated based on gradient and slope in order to determine how fast a toboggan may go, and they are monitored regularly for the presence of man-made obstacles or jumps (which are removed, if found). Anyone sledding outside of these accepted areas can be ticketed and fined.
The City clearly notes that “Tobogganing is an activity that you do at your own risk. The City is not responsible for any personal injury or damage to personal items.”
However, what happens if you are injured on a toboggan hill? Is the City or municipality potentially liable? What if they have a similar warning in place? What if the accident takes place on a non-designated toboggan hill?
To answer such questions, we can look to Ontario, where the landmark decision in Uggenti v. City of Hamilton explored issues of liability stemming from a sledding accident.
Uggenti v. City of Hamilton
The couple at the center of this lawsuit was seriously injured when the sled they were on hit the edge of a snow-covered ditch. The hill they were tobogganing down was located on reservoir property owned by the City of Hamilton. Following the accident, the man and his wife sued the City. The case went to Arbitration and was heard by Arbitrator Eugene Fedak, a retired Superior Court justice.
At Arbitration, the injured man stated that he had watched others sled down the same hill with no issues before he proceeded. He also stated that he had noted that there was a “slight depression” or “divot” across the bottom of the slope. Notably, he argued that he had not been aware that tobogganing on this hill was prohibited.
The Arbitrator found that the man had been aware of the risk of falling off a toboggan as he had previously been injured in a tobogganing accident, but that he was not aware of the risk of hitting the edge of a snow-covered ditch. The Arbitrator called the ditch a “hidden danger that was not a risk inherent to the sport of tobogganing”. The Arbitrator also found that the City knew about the ditch but had failed to take reasonable steps to warn tobogganers of the danger.
The Arbitrator found the City fully liable, with no contributory negligence by the man or his wife. The man was awarded $482,657 in damages. His wife was awarded $100,000 in damages, including $50,000 for housekeeping and child care costs, and $50,000 under the Family Law Act.
The basis for the liability finding was the breach of the city’s duty of care under Ontario’s Occupier’s Liability Act, which states in s. 3(1) that an occupier (e.g. a city, municipality, restaurant, etc.) of a premises (e.g. a parking lot, park, restaurant, etc.) owes a duty to take such care as is reasonable in all the circumstances to see that persons entering on the premises are reasonably safe while on those premises.
The Arbitrator found that it was this duty that applied rather than the less onerous duty found in s. 4 of the Act which applied “in respect of risks willingly assumed by the person who enters on the premises”. Where such risk is assumed, the occupier’s duty is “to not create a danger with the deliberate intent of doing harm of damage to the person…and to not act with reckless disregard of the person”.
The City appealed the decision.
Willing Assumption of Risk
On appeal, the City argued that the man should have been aware of the particular danger of this specific slope since he had admitted to noticing the depression at the base of the hill before he went down it. The City also argued that their knowledge or lack of knowledge of the danger that the ditch posed to tobogganers was irrelevant to the issue of the man’s voluntary assumption of risk, since it was not relevant to his knowledge of the risk or whether or not he consented to that risk. In the City’s view, the Arbitrator had incorrectly applied the wrong section of the Act.
In addition, the City argued that the Arbitrator had failed to consider the fact that the man was participating in a prohibited activity at the time of the accident since there was a City by-law prohibiting tobogganing.
The Court disagreed with the City, noting that in order for someone to voluntarily assume risk, that person must be aware of the existence of a specific risk. Winter sports are inherently dangerous, and a party like a City can always argue that a tobogganer, for instance, is willingly assuming the risk of injury inherent in tobogganing. However, the willing assumption of risk must include a knowledge of a distinct risk, and consent to that distinct risk.
Here, there had been ample evidence before the Arbitrator that allowed him to conclude that the man had not been aware of any specific risk he was assuming because he was unaware of the ditch at the bottom of the hill (i.e. the “hidden danger” as the Arbitrator had originally noted).
In addition, there had also been ample evidence to support the conclusion that the man was not aware that tobogganing on that hill was prohibited. The man’s ignorance of the rules was not a major factor in the decision.
The City argued that the Arbitrator had erred in finding no contributory negligence on the part of the man or his wife. In the City’s view, the Arbitrator had been obligated to consider whether a reasonable, prudent person, having seen the depression or divot at the bottom of the hill, would have foreseen that the depression or divot would cause injury while tobogganing, or that the tobogganing itself would cause injury.
The Court disagreed noting that the Arbitrator considered appropriate evidence in reaching the conclusion that there was no contributory negligence by the man or his wife.
Developments Since Uggenti
In the wake of the Uggenti decision, several cities and municipalities across Ontario banned tobogganing city-wide in an effort to limit their liability in potential personal injury lawsuits. In other cities, tobogganing is only permitted on designated hills that are regularly monitored (as is the case in Calgary).
Interestingly, there seem to be no decisions in Alberta on the issue of liability for tobogganing injuries, but the Uggenti decision may be instructive. It suggests that cities and municipalities cannot necessarily protect themselves from a finding of liability for winter sport injuries by simply imposing a by-law prohibiting that activity.
Ultimately, every decision is fact-specific and individual outcomes will depend on the particular circumstances at issue.
If you have been involved in a winter sports accident and have been seriously injured, you should contact a personal injury lawyer as soon as possible. At HMC Lawyers our Personal Injury Team has handled various claims arising from serious personal injuries. We work hard to protect the rights of our clients and resolve their matters efficiently and obtain compensation quickly and begin the process of moving on following their accident. With our help, you will have skillful, compassionate advocacy on your side from the beginning to the end of your claim from a team of litigators with over 130 years of cumulative experience fighting for clients’ rights in the courtroom. Call 1-800-480-3534 or contact us online to make an appointment today. We represent accident victims and their families in Calgary and across Alberta.