Decision may change perception of liability for organizations operating trails in parks and hopefully will reduce overall perception of risk of operating trails. Also please see the snowmobile and
links and article below.
Hamilton Spectator
The City of Hamilton has been found not liable for an accident that injured a
Toronto teenager in 2005 while he was walking in a city park on the
Niagara Escarpment.
Matthew Pierce, 17 at the time, suffered a fractured thigh bone, fractured wrist and cuts to his knee, face and leg when he fell about five metres into a ravine that is part of a park off Scenic Drive on the west Mountain.
He was hiking back from a lookout point with five friends, but veered off a marked trail onto a dirt path that he believed would take him back to Scenic Drive. The path ended at the edge of the ravine.
He was removed from the ravine by Hamilton firefighters and taken to
Hamilton General Hospital, where he underwent surgery. He was in a wheelchair until the end of 2005 but progressed to a walker, crutches and then a cane, and was able to graduate from
Grade 12 in June 2006.
The accident happened at about 1:45 a.m. on Oct. 1, 2005. Pierce and his father Robert sued the city, alleging Hamilton was in breach of its legal duties to prevent such accidents and make the park safe.
But
Ontario Superior Court Justice Joseph R. Henderson ruled the city met its duty of care under the Occupiers Liability Act and that "most, if not all, of the responsibility for Matt's injuries must be attributed to Matt's own negligence."
The case was heard over seven days this fall, ending Sept. 18. Justice Henderson issued his 13-page ruling Oct. 17.
At issue was whether the city acted with reckless disregard in not preventing an accident such as the one that befell Pierce. The Act says "an occupier of premises owes a duty" to take
reasonable care to see "that persons entering on ... the property" are "reasonably safe while on the premises."
It also requires the occupier not to create a danger with the intent to do harm.
The judge found the city had put up signs to mark two trails, and the path Pierce used was not marked.
"There is no suggestion that the city created a danger with the deliberate intent of doing harm or damage," the judge said.
He also found the city did not have any reports of a person falling into the ravine prior to Pierce's accident.
"Clearly, a specific warning sign was not warranted if the city was not aware of any unusual danger," Justice Henderson wrote.
The judge noted Pierce walked to the lookout point with the guidance of a friend who knew the terrain. When they returned, he "exacerbated his negligence by choosing to leave the person who had led him into the wooded area ... Matt's decision to venture out on his own in the dark in unfamiliar territory that he knew would consist of uneven terrain in a natural state surely was the main cause of his injuries."
Councillor Terry Whitehead, chair of the community services committee, which oversees city parks, was pleased with the decision.
"It's impossible to bubble wrap everything," he said.
"The city does the best it can."
The Ontario Trails Strategy was launched in 2005 as a framework to help guide public, not-for-profit and private sectorinvolvement with trails. The Ontario Trails Strategy establishes five strategic directions for planning, managing, promoting and using trails in Ontario and was developed in collaboration with other ministries and a wide range of stakeholders in the community.
