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November 2015

Fans: Enter at Your Own Risk

James Tomlinson
James Tomlinson,

Garett Harper
Garett Harper,

By Jim Tomlinson and Garett Harper
First presented at a Sports Liability Seminar

From the "We the North" campaign that the Toronto Raptors inspired back in the early spring to the successful Pan-Am games held here this summer to the very recent "Blue Jays Mania" that took the city by storm this fall, it is no exaggeration to say that Toronto was swept up in a sports fever this past year. Stadiums were jam-packed and ticket prices were through the roof. Games were attended in record numbers, and for those who recall the 7th inning of Game 5 between the Toronto Blue Jays and the Texas Rangers, you know that passions in the stadium were at near-record highs. Sporting events in general are often associated with throngs of fans (fanatics), fervent emotions, and consumption of alcohol. The interaction of these three factors creates a "perfect storm" that increases the likelihood of spectator injury.

There have been many notable incidents where spectators found themselves injured while attending a sporting event. Many scenarios involving spectator injuries have been publicized over the years — from objects flying into the stands (hockey pucks, baseballs and bats alike) to violent riots breaking out amongst fans. Certainly baseball fans will recall the tragic story of Shannon Stone, a 39-year-old firefighter who fell to his death at a Texas Rangers game in 2011, when American League MVP Josh Hamilton tossed a ball at him after a foul ball had landed near the stands. Unfortunately, these occurrences are not uncommon. In fact, a full third of the chapters in the book "Death at the Ball Park" by Robert Gorman and David Weeks assess incidents involving fans.1 As recently as August 29, 2015, a fan attending an Atlanta Braves game fell to his death from the upper deck of Turner Field.2

Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information regarding the industry standard for safety precautions in a given sport.

Contractual Liability

An injured spectator may commence an action for breach of contract. A "contractual entrant" is a person who has paid for the right to enter and use the premises and is owed a higher duty than that which is owed to mere invitees.3

An injured spectator who has paid for a ticket can potentially sue an occupier for breach of the implied term that the seat sold to him will be safe. In order for the spectator to qualify as acontractual entrant, he must be on the premises for primarily the same reason as was contracted for.

Although plaintiffs may be able to pursue this cause of action, the bulk of actions emerging from injuries to spectators are pursued under the auspices of the Occupiers' Liability Act.

... the "Act" provides that the occupier of a premises owes a duty to take reasonable care for the safety of persons and property entering the premises....

Statutory Liability

The Occupiers' Liability Act (the "Act") provides that the occupier of a premises owes a duty to take reasonable care for the safety of persons and property entering the premises. According to section 1 of the Act, an occupier is defined to include persons in physical possession of the premises or who are responsible for, or have control over, the condition of the premises, the activities conducted there, or the persons allowed to enter.4 Section 3(2) of the Act clarifies this duty as applying to risks caused not only by the condition of the premises, but also to the activities that take place on or in the premises.

The plaintiff has the onus of establishing on a balance of probabilities that the occupier breached its duty and was negligent in the circumstances. For an action to succeed, the plaintiff must establish the following elements:

1. that the defendant was the occupier of the property were the incident occurred;
2. that the defendant breached a duty of care owed to the plaintiff;
3. that the breach caused the injuries that the plaintiff sustained; and,
4. that the plaintiff suffered damage.5

The plaintiff must prove on a balance of probabilities that the defendant, as occupier of the premises, breached its standard of care in the given case. The standard is one of reasonableness, not perfection. The occupier is not automatically liable by virtue of the fact that someone was on its premises and sustained injuries.6

Based on the foregoing, the operator of a sporting event or facility is under a duty to exercise reasonable care in organizing and supervising the event to ensure that both participants and spectators are reasonably safe. The occupier of the premises or the operator of the event or facility thus owes a statutory duty towards spectators that enter the premises.

An action brought by a spectator may target the individual participant, team, league, or other appropriate parties.

A spectator who is injured during the course of a sporting event may commence an action against the occupier of the facility where the sporting event was held. Notably, under the Act, there can be more than one occupier of the same premises. For example, the owner of the premises and the occupier with control of the premises need not be the same party. In such instances, the court will need to look at the specific facts of the case in order to determine liability.7 An action brought by a spectator may target the individual participant, team, league, or other appropriate parties.

In Olinski v. Johnson, the Ontario Court of Appeal found that a sports team's obligations as an occupier may extend beyond the playing surface to include other areas of the arena as well.8 In this case, the owner of the arena had acknowledged that it was an occupier of the entire building for the purposes of the Act. The team, on the other hand, had signed a rental contract that provided that the team "must provide policing and/or supervision at all times."

The plaintiffs in this case were referees who were injured in attacks launched on them by players at a Junior B Lacrosse match. The attacks took place while on the field of play during the game and later near the locker rooms after the game had ended. The question that the court was tasked with answering was whether the team's duty was limited to the playing field itself, or whether it encompassed the entire arena including the locker rooms where the attack took place.

The trial judge found that the team was only the occupier of the field itself and not the rest of the arena.9 The Ontario Court of Appeal disagreed and extended the team management's duty to include supervision of areas other than the playing field itself. The Court of Appeal found that the broad duty to provide policing and supervision made relatively little sense if the team's obligation concerned only the playing surface. Although the Court of Appeal held that the team's duty extended beyond the playing surface, it ultimately held that the team was not liable for the harm to the plaintiffs, as the events in question were "unexpected" and were not reasonably foreseeable.

In Madden v. Holy Cross Catholic Secondary School, the courts in Ontario are currently considering a referee's duty of care to spectators. The plaintiff was injured while watching her son's high school football game when a player from the team ran out of bounds and collided with her.10 The plaintiff sued the school, the school board, and several other parties. The plaintiff brought a motion in February 2015, post-discoveries, to add the referees as defendants to the action. The motion turned on a question of discoverability and the applicable limitation period. While the court ultimately allowed the referees and their association to be included in the action as defendants, it commented that "actions against referees and an assertion that they owe a duty of care to spectators is rare."11

In opposition to the motion, the referees' counsel argued that it was unnecessary to add the referees to the action as defendants, as a duty of care was owed to the spectators by the occupier of the land through any employees, agents, contractors, or servants. Essentially, counsel for the referees argued that the occupiers of the land were vicariously liable for the referees' acts and/or omissions. The court did not address this issue on the motion. However, it will be interesting to see how this issue is addressed at trial. The question that potentially emerges from these proceedings is whether an occupier who hires referees for a sporting event is vicariously liable for the referees acts and/or omissions.

...athletes have let their passions get the better of them and have taken out aggression on spectators in the audience.

Aside from issues pertaining to referees' liability, athletes may also find themselves responding to a spectator's claim for injuries sustained during a sporting event. There have been numerous instances where athletes have let their passions get the better of them and have taken out aggression on spectators in the audience.

In one instance, dubbed, "Malice at the Palace", during a game between the Indiana Pacers and the Detroit Pistons on November 19, 2004, a fight between a few players developed into a brawl between fans, players, and coaches. The Associated Press described it as the most infamous brawl in NBA history.

Similarly, on March 29, 2001, Tie Domi, a Toronto Maple Leafs player, pummelled a fan of the Philadelphia Flyers when that fan fell into the penalty box that Mr. Domi was sitting in.

If similar cases arise in the future, a point of consideration will be whether occupiers of sports fields and arenas will be held vicariously liable for the actions and/or inactions of referees or athletes that result in harm to spectators. Hopefully the trial judge in Madden v. Holy Cross Catholic Secondary School will address this very issue and provide guidance for occupiers and their liability insurers alike.

Limiting Liability

Limiting the Scope of the Duty

Wherever possible, occupiers of sports facilities should take reasonable steps to ensure that they draw a spectator's attention to any risks that may cause them harm. By doing so, an occupier may be able to limit the scope of the duty that is owed. Furthermore, the occupier must take reasonable steps to bring any such limitations to the attention of the spectator.12

...the duty of an occupier varies depending on whether the party to whom it is owed is an invitee, a licensee, or a trespasser...

Importantly, the duty of an occupier varies depending on whether the party to whom it is owed is an invitee, a licensee, or a trespasser.13 Section 4 of the Act provides that a trespasser is deemed to willingly assume the risks of the premises, although the occupier still owes a duty not to create a danger with the deliberate intent of doing harm and must not act with reckless disregard to the presence of the trespasser.14

While it is rare to see a trespassing spectator enter a sports facility, due to the fact entry is usually monitored in a way that makes this difficult, there may be cases where spectators "trespass" or gain entry into certain areas of the sports facility that are purposefully "out of bounds."

In Deyo v. Kingston Speedway Ltd.,15 the plaintiffs paid admission to attend an auto race at the defendant's track. During the race, a car spun out of control and smashed into a guardrail, causing debris to be hurled through the air, which struck the plaintiffs. One of the plaintiffs died instantly and another was seriously injured.

In determining whether the occupier of the track discharged the duty owed to the plaintiff, the Ontario Court of Appeal considered various factors, such as the fact that the plaintiffs were viewing the race from a restricted area which had a snow-fence and rope barrier and which was generally considered unsafe. Notably, the Court of Appeal indicated that the same spectators at a sporting event may be owed varying duties of care depending on the timing and location of the incident. The Court of Appeal concluded that while the plaintiffs were invitees when they were in the non-restricted area, their status changed to that of trespassers when they went past the barrier, and thus, the defendant's duty to them changed as well. Accordingly, the defendant was found not liable to the plaintiffs in the circumstances.16

Exculpatory Clauses

One way in which operators of an event may seek to limit their liability is through the printing of limitation of liability clauses on the entrance ticket to a sporting event. Generally, in order to be able to rely on this exclusion, the language used must be clear, specific, and must somehow be brought to the attention of the spectator. However, in cases that have gone to trial, it does not appear as if defendants have attempted to use such a limitation clause in this context as a defence for claims brought by spectators. As such, there has been little guidance from the courts with respect to the effectiveness of these specific clauses on the backs of sporting event tickets.

This has become known as the "reasonable steps test."

However, the courts have examined the efficacy of waivers in the context of participants in sporting activities. This may shed light on how a defence in a prospective spectator claim might be approached by the courts. Typically, waivers have been found sufficient where the defendant is able to demonstrate that it took all reasonable steps to bring the contractual terms regarding the exclusion of liability to the participant's attention.17 This has become known as the "reasonable steps test."

The courts have examined the issue of whether the "reasonable steps test" is objective or subjective. In Argiros v. Whistler and Blackcomb Mountain, the Ontario Superior Court explicitly stated that the determination is objective.18

In Loychuk v. Cougar Mountain Adventures Ltd., the British Columbia Court of Appeal was asked to rule on whether a waiver that released a resort from all liability, including claims arising from the resort's own negligence, was valid.19 This case dealt with a zip-line tour in which the plaintiffs were injured due to the negligence of the resort. The plaintiffs argued, inter alia, that the waiver was not valid at common law because it was unconscionable.

The BC Court of Appeal stated that "it is not unconscionable for the operator of a recreational-sports facility to require a person who wishes to engage in activities to sign a release that bars all claims for negligence against the operator and its employees. If a person does not want to participate on that basis, then he or she is free not to engage in the activity."20

In the recent Ontario case of Trimmeliti v. Blue Mountain Resorts Ltd., a skier purchased a season pass at Blue Mountain that came with an accompanying waiver of liability form.21 The plaintiff was injured on the slopes during a night-time ski adventure and brought a claim against the ski resort for damages. The court focused heavily on the title of the waiver agreement, noting that it was in capital letters in its own enclosed box. Justice Dunphy noted that "it would have been impossible for any literate person to have signed this document - even if they did no more than scan the heading - and remain ignorant of its general purpose and intent."22

As a risk management tool, all occupiers should adopt and display language that aims to limit any liability for injuries that may befall spectators while on the occupiers' premises. This can be done through several avenues, such as a reproduction of language on the tickets to sporting events and on signage that is reproduced in high traffic areas throughout the premises. It is important to note that whether the language appears on the tickets or on signage, it must be "eye-catching" enough so as to draw the spectator's attention to it. It is likely that "fine print" reproduced on the ticket will not satisfy this requirement.

...occupiers should highlight for the trier of fact that numerous precautions were in place...

Systems in Place

To deflect liability, occupiers should highlight for the trier of fact that numerous precautions were in place to prevent harm to spectators, such as maintenance checklists indicating that appropriate steps were taken on the day of the incident. As in typical occupier liability claims, courts will look to expert evidence detailing the industry standards and expectations when determining whether the precautions that were followed were reasonable.23

In Costa v. Boston Red Sox Baseball Club, the plaintiff was hit by a hard foul ball.24 In the wake of the commencement of the litigation, the Boston Red Sox outfitted Fenway Park with large signs boasting warnings of the various risks in attending a baseball game. The plaintiff noted in her pleadings that these signs were installed after her incident, yet the Appeals Court of Massachusetts still held that the "even someone of limited personal experience with the sport of baseball may be assumed to know that a central feature of the game is that batters forcefully hit balls that may go astray from their intended direction. We therefore hold that the defendant had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands."25

In Reese v. Coleman, the plaintiff was struck by a snowmobile that went off the track while attending a race for which he paid admission.26 The Saskatchewan Court of Appeal held that the defendant toboggan club was negligent because it did not take any steps to block off the area where the plaintiff spectator was standing, thus allowing the plaintiff to presume that it was safe.

More recently, in Dyke v. British Columbia Amateur Softball Assn., the plaintiff was struck in the head by a foul ball while standing in the spectator's section keeping score.27 The British Columbia Court of Appeal upheld a judgment in favor of the defendant that reiterated that the occupier's duty to spectators is to provide a standard of care based on reasonableness. Furthermore, the Court held that there must be a causal connection between an omission on the part of the occupier, and the plaintiff's injury. Finally, the Court stated that "[i]n sports cases, the reasonable standard of protection for a given location is largely determined by reference to the industry standard."

Unforeseeable Risks

An occupier may also succeed in defending a plaintiff's claim where it can be shown that the risk of the harm that the plaintiff suffered was not foreseeable.

In Payne v. Maple Leaf Gardens Ltd., two hockey players began to fight over a hockey stick close to the boards at the edge of the rink and injured the plaintiff spectator, who was sitting next to the boards. The Ontario Court of Appeal held that the action was properly dismissed by the trial judge as against the operator Maple Leaf Gardens, because an accident of this nature could not have been anticipated and was not foreseeable.28

The court ultimately held that this was "not a reasonably foreseeable accident"...

More recently, in Burns v. Tri-City Wrestling, the court considered a situation where a spectator at a wrestling match, seated just outside the wrestling ring, was injured after one wrestler picked up his opponent and launched him into the audience.29 The wrestler landed on the spectator, crushing him on the floor. The spectator sued the lodge where the match took place. The court ultimately held that this was "not a reasonably foreseeable accident" and that although no warning signs were in place, there was "no evidence that any warning signs or similar steps would have discouraged Mr. Burns from sitting in the front row."

Even if a spectator is able to show that harm was foreseeable, if the occupier can show that sufficient precautions were taken and that the spectator was aware of the inherent risks, then the defendant may still be able to stave off the claim.

In Elliott v. Amphitheatre Ltd., the plaintiff was seated in the front row of the defendant's ice rink watching a hockey game for which he had a paid ticket and was hit by a puck.30 The plaintiff sued the operator of the rink, claiming that it was negligent due to its failure to secure the protection of spectators by installing protective wiring or netting. The Manitoba Court of King's Bench dismissed the action, noting that the defendant was not an insurer against dangers that were incidental to the hockey game. Rather, the defendant must take reasonable steps to ensure the safety of spectators, which it had done.

On March 16, 2002, the NHL suffered its first fan fatality when 13 year-old Brittanie Cecil was hit in the temple by a puck as it deflected into the stands. Brittanie's family threatened to sue the NHL, the Columbus Blue Jackets, and Nationwide Arena, but ultimately the matter was settled out of court.31 The team, the NHL, and Nationwide Arena agreed to pay $705,000 to Jody Sergent, the girl's mother, and $470,000 to David Cecil, the girl's father.32

In response to this tragedy, the NHL implemented league-wide standards for mandatory netting at either end of the rink and required that the Plexiglas around the entire arena be at least five feet in height.33 Rule 1.4 of the NHL's Official Rules addresses spectator netting and states: "Spectator netting shall be hung in the ends of the arena, of a height, type, and in a manner approved by the League."34

Spectators at baseball games face a similar risk of being struck by a flying object. In Noonan v. Exhibition Place, the minor plaintiff attended a Blue Jays baseball game with his father at Exhibition Stadium.35 The child was hit by a baseball while seated in a section close to the field, where there was no protective screen. The court held that the occupier, Exhibition Stadium, was not liable, as the plaintiff knowingly and willingly sat in a section that did not offer the same degree of protection as did other areas of the stadium.

...players had called on the MLB to extend protective netting behind home plate...

On August 21, 2015, a fan attending a game between the Detroit Tigers and the Texas Rangers was hit by a foul ball during the game and sustained severe injuries. Within a day, players had called on the MLB to extend protective netting behind home plate.36 Justin Verlander took the complaint public by tweeting "More protective measures need to be put in place in all parks! Players are sick of seeing injuries that could easily be avoided!"37 Tigers' third baseman Nick Castellanos put it well when he stated that if the tragedy that occurred today "...doesn't get nets up, what is it going to take?"38 The MLB has apparently begun examining ways to increase spectator safety at its 30 stadiums, but no policy changes are expected before the end of the 2015 campaign.39 This is certainly something to keep an eye on going forward.


The legislation and case law clearly stands for the proposition that an occupier is not an insurer that guarantees that its premises will be completely risk-free. Even in cases where the plaintiff has sustained serious injuries, the courts have consistently looked to industry standards in determining whether the occupier has met the reasonableness standard. In cases where the occupier meets this standard, the plaintiff's claim will be dismissed.

Furthermore, the courts tend to take into account factors that are case-specific, such as whether or not the plaintiff knew or ought to have known of the risks associated with a particular sport, as well as the area in which he or she decided to watch the said event.

It is arguable that there are inherent risks with all sporting events. However, at trial, the question becomes whether the risk assumed by the spectator is foreseeable and reasonable in the circumstances. The answer is invariably decided by the facts of the case, as well as expert opinions on the industry standards.

1 Death at the BallPark
2 Global News: Fan Falls from Upper Deck at Turner Field as Braves Play Yankees
3 Linden,Canadian Tort Law, 5th Ed. (Toronto: Butterworths, 1993) at 618.
4 R.S.O. 1990, c. O.2 as amended, at s.1.
5 Cherniak, Linden, Klar, Kryworuk, ed. by Rainaldi, Remedies in Tort Volume 3 (Toronto: Thomson Reuters Canada Limited, 20`5 - Release 8) at 18-24.1.
6 Kerr v. Loblaws Inc. [2007] OJ No 1921 (Ont. C.A.).
7 R.S.O. 1990, c. O.2, as amended, at s. 1(b).
8 Olinski v. Johnson, 1997 CarswellOnt 1393, 32 OR 3d 653(Ont. C.A.).
9 Olinski v. Johnson [1992] OJ No 2398, 1992 CarswellOnt 4069 (Ont. S.C.J.) at 21.
10 Madden v. Holy Cross Catholic Secondary School, 2015 ONSC 1773, 2015 CarswellOnt 7670 (Ont. S.C.J.).
11 Ibid at 31.
12 R.S.O. 1990, c. O.2, as amended, at s. 5(3).
13 R.S.O. 1990, c. O.2, as amended, at s. 3(3).
14 R.S.O. 1990, c. O.2, as amended, at s. 4(1).
15 [1954] O.J. No. 78.
16 For pictures of the Kingston Speedway: UrbexPlayground - Abandoned Kingston Speedway.
17 Best v. Deal, 2008 ONCA 26, 2008 CarswellOnt 141(Ont. C.A).
18 [2002] O.J. No. 3916 (Ont. S.C.J.) at 20.
19 2012 BCCA 122, 2012 BCJ No 504 (B.C.C.A.).
20 Ibid at 40.
21 2015 ONSC 2301, 2015 CarswellOnt 6844 (Ont. S.C.J.).
22 Ibid at 68.
23 Ibid at 50 and 58.
24 [2004] 809 N.E. 2d 1090, p. 303.
25 Ibid at p. 303.
26 [1979] S.J. No. 535, 4 W.W.R. 58 (Sask. C.A.).
27 2008 BCCA 3, 2008 CarswellBC 11 (B.C.C.A.).
28 [1949] O.J. No. 515, 1948 CarswellOnt 82.
29 2013 CarswellOnt 2278, 226 A.C.W.S. (3d) 597 (Ont. S.C.J.).
30 [1934] 3W.W.R. 223 (Man. K.B.).
31 Leigh Augustine, "Who is responsible When Spectators are Injured While Attending Professional Sporting Events?" (2008) Univ. of Den. Sports and Entertainment L. J. at 12.
32 "Settlement from NHL and others Released", Associated Press (4 April 2004)
33 Brett Celedonia, "Flying Objects: Arena Liability for Fan injuries in Hockey and Other Sports" (2008) 15 Sports L.J.115.
34 National Hockey League Official Rules 2014-2014 at 1.
35 [1991] O.J. No. 421.
36 Fan Hit Foul Ball Detroit Tiers Home Game Texas Rangers
37 Twitter: Justin Verlander
38 The Score
39 MLB Protective Netting Extend Fan Safety Broken Bats Foul Balls Philadelphia


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