Canada: Fans Beware: The Risks Of Watching Your Favourite Athletes*

Toronto has once again found itself in the throes of sports fanaticism this year. The Blue Jays repeated the successes of last year's meteoric rise to the American League Division Series Championship. The Toronto FC just concluded a competitive campaign, losing the MLS Cup to the Seattle Sounders. The Raptors are in the midst of their own campaign for a fourth straight Atlantic Division title. The city has become a hotbed of hockey activity. It welcomed the best players in the National Hockey League as they competed in the World Cup of Hockey and will host the newest generation of hockey talents in the World Junior Hockey Championships.

Millions of fans from across the country attend sporting events to experience the highs and lows of these thrilling journeys with their favourite athletes. However, when these large, boisterous crowds are exposed to the very real dangers of injury at sporting events, things can take a sharp turn for the worst.

The risk of spectator injury at sporting events cannot be overstated. For example, nearly 1,750 spectators are injured each year by batted balls, mostly fouls, at major league baseball games, or at least twice every three games.2 In the span of 127 National Hockey League ("NHL") games, pucks injured 122 people, 90 of which required stitches, and 57 required transport to a hospital emergency room.3

Due to the dangers associated with attending professional sporting events, such as hockey and baseball, leagues across North America have taken action to limit sports-related injuries through the implementation of various safety regulations. These include shielding fans with protective netting and warnings to fans to remain alert at all times for the possibility of errant balls or other objects through the form of public service announcements and warnings printed on tickets and signs.

These safety measures are necessary, as occupiers have a legal duty to ensure that the venue where a sporting event is held is reasonably safe for spectators. Moreover, by implementing measure to minimize the risk of injury, occupiers protect the "fans whose money and support act as the lifeline to the survival of the sport as a business."4

Occupiers are not required to maintain an absolutely risk-free environment. Rather courts will consider the type of event, the inherent risks involved, and the industry safety standards when determining whether an injury to a fan was reasonably foreseeable. This paper will discuss common claims pursued by spectators as well as possible defences that can be employed by occupiers.

Causes of Action

An injured spectator can pursue a cause of action against an occupier in one of two ways. The first way is to commence an action for breach of contract. A fan who has paid for a ticket to a sporting event has a contractual right to enter and use the premises. Should that fan be injured, they can pursue the occupier for breaching the implied term that the seat sold to them will be safe.

However, the second, and more common means for an injured fan to sue an occupier is to pursue a cause of action under the provincial Occupiers' Liability Act (the "Act").5 This type of action will be the focus of this paper.

I. OVERVIEW OF LEGISLATIVESCHEME

The Act has now been in force in Ontario for the past 16 years. In enacting this legislation, the Legislature attempted to create a balance between ensuring the safety of individuals entering a given premises, and the need to encourage occupiers to allow for recreational use on the property without fear of litigation.

Section 1 of the Act defines an occupier to include people in physical possession of the premises or who are responsible for, or have control over, its condition, the activities conducted there, or the persons allowed to enter.6Sports facility management, owners, and operators are all considered occupiers within the meaning of the Act. According to the Act, occupiers have a duty to ensure that a sports venue is reasonably safe for spectators.7 It is also important to note that there can be more than one occupier of a premise. This means that spectators can claim not only against the owner of the premises, but also against the manager of the premises, the team, league, or other appropriate parties.

Duty and Standard of Care

Section 3(1) of the Act imposes a duty on an occupier to take reasonable care in ensuring that people are safe while on their premises. Importantly, section 3(2) clarifies this duty as applying to risks caused not only by the condition of the premises, but also to the activities that take place there. Therefore, occupiers must not only be concerned with physical characteristics of the premises, but also the manner in which the premises are used.

The Supreme Court of Canada in Waldick v Malcolm described the duty occupiers' owe as being context-dependent, stating,

"[The] statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation – thus the proviso, 'such care in all circumstances of the case is reasonable'."8

In this decision, the Supreme Court also implicitly found that the duty of care is a proactive one which involves taking reasonable steps to prevent injury before one occurs. In this vein, ignorance of a reasonable risk is most certainly not bliss.

While sporting facility owners and operators are required to take steps to ensure the safety of fans, the applicable standard of care of reasonableness is one which "requires neither perfection nor unrealistic or impractical precautions against known risks."9An occupier will not be held automatically liable simply because a spectator was at the venue and suffered an injury.

It is clear that the courts will consider the facts of a specific case, and the applicable industry standards, when determining whether an occupier has met its standard of care of reasonableness. For example, in Dyke v British Columbia Amateur Softball Assn., the British Columbia Court of Appeal upheld a lower court decision that a defendant was not liable for a spectator acting as a scorekeeper being hit in the head by a foul ball.10 The lower court stated in its judgment that "[i]n sports cases, the reasonable standard of protection for a given location is largely determined by reference to the industry standard."11 In this case, the lower court held that the occupier had provided safe alternative locations, and thus had met its duty of care. The plaintiff had willingly chosen to sit in a relatively unprotected area, when there were fully protected seats available to her. Additionally, the plaintiff had failed to keep a lookout for foul balls.12 Therefore, elements of contributory negligence ought to be investigated by occupiers if faced with a claim.

II. FACING LITIGATION

  To succeed in showing that an occupier has breached its duty, the plaintiff bears the onus of establishing the following four elements on a balance of probabilities:13

1. The defendant was the occupier of the property where the incident occurred;
2. The defendant breached a duty of care owed to the plaintiff;
3. The breach caused the injuries that the plaintiff sustained; and,
4. The plaintiff suffered damages.

An occupier faced with the potential of litigation from an injured fan, however, is not helpless. There are a number of available defences to these claims that may, in certain instances, act as a complete bar to a potential action.

Modifying the Duty to Spectators

The Act allows occupiers of sports facilities to restrict, modify, or exclude the duty of care they owe to spectators.14 This ability, however, is not without its limits. In order to successfully modify its duty, wherever possible, occupiers must attempt to draw a spectator's attention to any risks that may cause them harm in the sports venue. As an example, an occupier may wish to limit its exposure through the use of contractual waivers or releases. To be effective, such waivers need to use clear, understandable language and the occupier must ensure that they are brought to the fan's attention.

In cases where waivers have been successfully used to limit liability to participants, the courts have used the "reasonable steps test" to establish that the occupier took all reasonable steps to bring the terms concerning the exclusion of liability to the participant's attention.15 This determination is based on an objective standard.16 Waivers that make their intention clear and obvious to the participant have been used to limit an occupier's exposure.17 Additionally, as the court held in Jensen v Fit City Health Centre Inc, a waiver which expressly excludes claims in negligence can be considered to exclude claims for breaches of statutory duties based in negligence even if the waiver does not mention the Act specifically.18

Occupiers of sporting venues should consider using waivers and signage to indicate the risks associated with the premises and any attempts to limit liability. Printing language on tickets and posting signs throughout the venue are only a few of the many ways in which occupiers can attempt to modify their duty in order to limit their exposure.

Spectators Willingly Taking on Risks

The duty an occupier owes to a spectator is further modified when the person willingly assumes the risk of entering the premises.19 In these instances, the occupier owes a duty to not create a danger with the deliberate intent of doing harm and to not act with reckless disregard of the trespasser's presence.

The Legislature's intention when enacting the Act was to limit the duty of care owed to trespassers, who are deemed to accept all the risks of attending at the premises. While instances of trespassing into sporting venues are rare, there are instances where courts have found that occupiers were not liable for injuries to individuals who unlawfully entered restricted areas in sporting venues. The duty of care owed was modified by the fact that the spectators willingly trespassed into areas considered generally unsafe by the occupier.20

Actions that are Reasonably Unforeseeable

To fulfill its duty, occupiers of sports facilities do not need to guard against every possible accident. Rather, an occupier is only required to exercise care against dangers that are sufficiently probable, or "reasonably foreseeable." Occupiers are only be held to a standard of reasonableness and not one of perfection.

As discussed in detail below, there are instances where courts have held that occupiers are not liable for the actions of athletes that fall outside the spectrum of reasonably foreseeable activities. For example, an athlete climbing into the spectator stands to fight could be considered outside the realm of reasonably foreseeable activities. As long as an occupier can show that it has exercised care in the planning and running of sporting events to ensure the safety of spectators, it is unlikely that a court will find the occupier liable for the unforeseeable actions of athletes on the premises.

III. LIABILITY OF PLAYERS TOSPECTATORS

In addition to suing occupiers for failing their duty of care, spectators may also pursue litigation for unreasonable conduct against an athlete participating in the game. Professional athletes may be held liable for actions that fall outside the inherent part of the game and which demonstrate reckless disregard for the spectator's safety.

In certain instances, the actions of professional athletes are so egregious and unexpected that the courts have held them liable for spectator injuries. However, because these actions were unforeseeable to the occupier of the venue where the injuries occurred, the courts have not assigned liability to the occupier.

In Payne v Maple Leaf Gardens Ltd, a professional hockey player was found liable for injuries sustained by a spectator during a game. One of the plaintiffs in this case was struck by a hockey stick during a fight between players from the Toronto Maple Leafs and the Chicago Blackhawks teams. The court found that an unforeseeable harm such as being hit with a hockey stick could protect an occupier from liability; however, the same could not be said for the players. Spectators only assumed the ordinary risks of the game and not of injuries resulting from negligence or improper conduct by an athlete. Being hit by an errant piece of equipment was less of a risk in hockey than in other sports, such as baseball, due to barriers being installed between the spectators and the athletes in a hockey rink.21

In another case, Burns v Tri-City Wrestling, a spectator was awarded damages for injuries resulting from of the actions of Dangerboy, a professional wrestler. The court found that Dangerboy behaved negligently when he decided to perform beyond the confines of the ring and launch his opponent directly into the audience. Although it was not unusual for some part of the performance to take place outside of the ring, the court held that this specific act was not reasonably foreseeable to the occupier of the premises. The wrestler, therefore was the only party held liable for the plaintiff's loss.22

However, there are circumstances where players can share liability with occupiers for injuries caused by both the athlete's reckless actions and an unsafe sporting venue. In Keough v Royal Canadian Legion, an infant spectator was seriously injured as a result of a snowmobile race. The driver of the snowmobile left the race track and entered the spectator area, striking the infant. The court held that the plaintiff's injuries were caused by the driver's negligent operation of the snowmobile. He was found to have driven carelessly and in a wantonly reckless manner. However, unlike the previous cases discussed in this section, the court further held that the occupier also was liable for failing to provide safety barriers to prevent spectator injuries. The court found that it was reasonably foreseeable to the occupier that there was a significant risk to fans being subjected to harm with the lack of adequate safety mechanisms in place.23 This case has significant implications for occupiers of racetracks or organizers of racing events.

Conclusion

Occupiers owe a clear statutory duty to spectators to ensure that a sports facility is reasonably safe. This duty, however, is not a guarantee of an absolutely risk-free environment. When facing claims by injured spectators, occupiers are required to show that they have taken reasonable steps to minimize risks to fans, including attempts to meet industry safety standards. The courts will also consider context-specific factors, such as the inherent risks associated with a particular sport, when determining whether an occupier can be held liable.

In circumstances where occupiers can demonstrate that they have met their legal obligations, and safeguarded against all reasonably foreseeable risks, they are in a good position to have the claim brought against them dismissed. Ultimately, any determination of liability by the courts depends on the facts of each case. However, by employing the strategies outlined in this paper, such as the use of waivers to safeguard against liability or the use of safety measures to safeguard spectators, occupiers of sporting facilities will possess a more robust defence to claims advanced by spectators.

We continue to watch this developing field with great interest as the courts develop this active area of law. Stay tuned for future updates!

Footnotes

* Paper is current as of December 20th, 2016.
2 David Glovin, Baseball Caught Looking as Fouls Injure 1750 Fans a Year Bloomberg News (9 September 2014), online: Bloomberg News
3 D Milzman,. "The Puck Stops Here: Spectator Injuries, A Real Risk Watching Hockey Games" (2000) 36:4 Annals of Emergency Medicine at S24.
4 Christopher Yamaguchi, The Price of Admission: Liability in Professional Baseball and Hockey for Spectator Injuries Sustained During the Course of the Game (2013) Law Student Scholarship Paper: Seton Hall Law at 2.
5 RSO 1990, c O2 ["the Act"].
6 Ibid.
7 Ibid at section 3.
8 [1991] 2 SCR 456 at para 33, [1991] SCJ No 55.
9Miltenberg v Metro Inc, 2012 ONSC 1063 at para 33, [2012] OJ No 662.
10 2005 BCSC 1422, [2005] BCJ No 2187; upheld 2008 BCCA 76, BCLR (4th) 278.
11Ibid at para 15.
12 Ibid at paras 39, 46-50.
13 Cherniak, Linden, Klar, Kryworuk, ed. by Rainaldi, Remedies in Tort Volume 3 (Toronto: Thomson Reuters Canada Limited, 2015 - Release 8) at 18-24.1.
14 Act, supra note 4 at section 3(3)..
15 Best v Deal, 2008 ONCA 26, 2008 CarswellOnt 141.
16 Argiros v Whistler and Blackcomb Mountain, [2002] O.J. No. 3916 (Ont SCJ) at para 20.
17 See Trimmeliti v Blue Mountain Resorts Ltd, 2015 ONSC 2301, [2015] OJ No. 1825.
18 2015 ONSC 6326 at para 41, 2015 CarswellOnt 20615.
19 Act, supra note 4 at Section 4(1)
20 See Deyo v Kingston Speedway Ltd, [1954] 2 CLR 419, [1954] OR 223 (Ontario Supreme Court).
21 [1949] 1 DLR 369, 1948 CarswellOnt 82 (Ont CA).
22 2013 CarswellOnt 2278, 226 ACWS (3d) 597 (Ont. SCJ).
23 91 DLR (3d) 507, 1978 CarswellMan 89 (Man CA).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.