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February 2017

Fans Beware: The Risks of Watching Your Favourite Athletes1

James Tomlinson
James Tomlinson,

Garett Harper
Garett Harper,

By Jim Tomlinson, and Garett Harper

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.

...more common means for an injured fan to sue an occupier is to pursue a cause of action under the provincial Occupiers' Liability Act...

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.


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

An occupier will not be held automatically liable simply because a spectator was at the venue and suffered an injury

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.


 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.

...spectators may also pursue litigation for unreasonable conduct against an athlete participating in the game.

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.


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.

The courts will also consider context-specific factors... when determining whether an occupier can be held liable.


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!

1 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"].
7Ibid 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).



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