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March 3, 2011

Sports Camp/Clinic Liability

By Martin Smith
First presented at a Sports Liability Seminar

Equestrian Day Camps

In the context of horseback riding camps, the risk for insureds lies in claims made against them in negligence. Specifically, insureds are at risk of patrons at a day camp making allegations that they failed to fulfill the duty of care owed to them to keep them safe while engaging in a potentially dangerous activity offering horseback riding.

Martin Smith
Martin Smith,

The leading case regarding the liability of a riding academy to a customer is the 1967 Manitoba decision, Saari v. Sunshine Academy Ltd.1 In that case, the plaintiff was injured as a result of being trampled by a horse after falling off the horse she was riding. Both horses belonged to the defendant who offered trail rides led by three guides. It was the responsibility of the guides to lead the group, look after the riders, and ensure that the horses did not bunch up during the course of the ride. While the plaintiff was on the horseback ride (with a large group of other riders), the horses started galloping and bunched together so that some of the riders' knees knocked together. The plaintiff lost control of her horse and fell. The horse behind her trampled her to death.

In considering the duty of the defendant to the deceased plaintiff, the court made the following oft quoted statement:

The defendant owed "...a duty to take reasonable precautions to prevent injury to [the plaintiff]. The operator of a riding academy is not an insurer of the safety of his customers. There is an element of risk in horseback riding, however careful the operator may be and a certain element of risk must be accepted by any rider who hires from a riding academy and goes on a trail ride. The question then must be answered, did the defendant take reasonable precautions to prevent injury to Susan Saari? Did the defendant provide a proper horse, proper equipment, a proper place to ride and trained and competent guides?2

Although the court did not find fault with the horse, the equipment, or the location of the trail ride, the court did find that the defendant was negligent in allowing incompetent guides to lead the ride. The court found that the guides permitted the plaintiff to canter her horse (when she was a very inexperienced rider) and allowed the horses to ride too close together.

In Dwyer v. Douglas Lake Cattle Co.,3 a British Columbia court considered whether or not the defendants were negligent when the plaintiff fell from a horse during a trail ride. The plaintiff alleged that he was not asked about his level of experience and was only told to hold on to the reins or the saddle horn while riding. As well, he was given no trail etiquette or safety instructions. During the ride, the plaintiff found that his horse was tossing his head and foaming on the mouth. He complained to the guide, but no action was taken. Later, the plaintiff's son's horse sped up, followed by the plaintiff's horse. The plaintiff then fell over the horse's shoulder and fractured his skull.

In considering the liability of the defendant in Dwyer, Justice Davies considered Richardson and Saunders,4 which followed the Saari decision and held that:

the standard of care required in a case such as this would include assuring that the horse hired was proper in that it had no unusual properties; that the place or area provided for the ride was proper in the circumstances; that the equipment provided was satisfactory and suitable; and that the guide provided was trained, experienced and familiar with the trails to be used.5

Justice Davies' view was that "the factual circumstances of each case will determine whether the operator of a stable has taken the necessary reasonable precautions to avoid injury to his customer."6 The court acknowledged that an equestrian training facility, as opposed to the "dude ranch" in this case, owes its patrons a higher standard of care.

By assessing the credibility of the parties, Justice Davies found that the defendant had failed to meet its duty of care to take reasonable precautions to prevent injury to the plaintiff in that, amongst other things, the guide did not provide adequate safety instructions and did not lead the ride properly.

Based on the longstanding test in Saari, a plaintiff bears the burden of proving that the camp did anything wrong. However, courts tend to hold certain types of facilities to a higher standard of care, depending on the services offered. Even where a defendant has met the standard with respect to the horses, the equipment, and the location of the trail ride, if they do not have properly trained staff to lead the rides, they may be exposed to liability. This situation is by far the greatest area of exposure that we experience in defending these types of claims.

Rollerblading Day Camps

Another activity where we have acted for day camp operators is rollerskating or rollerblading.

In Ontario (and across Canada generally), an occupier owes a duty towards participants to exercise reasonable care in the organization of the activity and in the design, construction, and maintenance of the playing facility, where applicable. However, Canadian courts have held that there will be no liability where reasonable precautions or procedures could not have prevented the accident or where the injury arose from risks inherent in the sport. In rollerblading activities, the courts have found that a patron inherently accepts some risk by engaging in the activity.7

Liability for roller skating rinks was addressed by the Supreme Court of Canada in 1947, wherein the Court accepted the finding of fact that roller skating involved some inherent risks. In doing so, the Court concluded that it was sufficient for a defendant to show "that he had acted in accord with general and approved practice."8 The Court reasoned that a defendant would meet this standard by demonstrating that the equipment had been regularly examined by competent employees and by providing equipment "which could be used with reasonable safety if ordinary and usual skill and care were exercised by the skater."9

In Rozenhart, the Alberta Court of Queen's Bench expanded on the Supreme Court's findings of liability in the context of roller skating. In that case, the plaintiff rented equipment and purchased inline skating lessons from the defendant. After the plaintiff rented the equipment, he was directed to wait in a nearby park for the other students and the instructor. While waiting, the plaintiff put on his equipment and began skating around on the trails in the park. The plaintiff then fell and suffered injuries. The plaintiff argued that the defendant supplied dangerous services to him and, as a result, owed him a duty of care since it was reasonable foreseeable that he could suffer harm by use of those services.

The court rejected the plaintiff's arguments and held that the defendant exercised the degree of care that was demanded in the circumstances, considering the age of the plaintiff, the location of the lesson, the safety equipment provided, the inherent risks involved in the sport, and the degree of harm that could reasonably be expected to flow from such risk.10

The court concluded that the defendant designed its program with a view to safety and caution. Even though the plaintiff was left alone, the fact that he chose not to wait for the lesson did not amount to the defendant exposing him to unreasonable risk. Further, the court established that neither roller skating itself nor the braking system involved in that activity were dangerous and that the risks associated with their use were obvious.

The defendant was also not required to provide the adult plaintiff with specific warnings to the risks involved in roller skating.11 In fact, even if the court were to find that the defendant was negligent with respect to its failure to warn of the risks and have the plaintiff sign a liability waiver, there was no causal link between this negligence and the plaintiff's injuries. The defendant was found to have acted reasonably in the circumstances and had demonstrated that it discharged the duty of care owed to the plaintiff as an instructor.

Around the same time, in Ferris v. Greater Vancouver (Regional District), the British Columbia Supreme Court considered a claim for damages against a Municipality where the plaintiff engaged in rollerblading with a friend in a neighbourhood park.12 The plaintiff was inexperienced and unable to maintain control while traveling down certain curves in the park. The plaintiff failed to exit the road where he intended because he was traveling too fast, he then hit some debris on the road and fell. The plaintiff claimed that the defendant was negligent for failing to provide adequate warning signs about the steepness of the roads and for failing to ensure that the roads were free from debris.13

In weighing the credibility of the witnesses, the court found that the plaintiff would not likely have slowed down or walked if he had seen a sign, assuming that he would even have been able to do so. The court also found that even if there was some negligence on the part of the Municipality in terms of signage, there was no causal link between this negligence and the plaintiff's injuries. As in Rozenhart, the plaintiff was held to be the author of his own misfortune by failing to use reasonable care when engaging in an inherently risky sport. Furthermore, the court concluded that the Municipality had discharged its duty to maintain the roads for rollerbladers by taking steps to clear the road at some point each day. The court held that the defendant owed the public a duty to ensure that the roads were reasonably safe, not a duty of perfection.

Therefore, although offering rollerblading as an activity in a day camp setting can expose insureds to liability risks, there is a comforting amount of helpful decisions for those offering such a sport. These decisions demand reasonable diligence on the part of those partaking in the activity to be cautious and safety conscious. Those that do not do so may not find much sympathy in the Canadian courts.

1 (1967), 65 D.L.R. (2d) 92 (Man. Q.B.) [hereinafter Saari].
2 Ibid at 97-98.
3 [2003] B.C.J. No. 2222 (B.C.S.C.) [hereinafter Dwyer].
4 [1989] B.C.J. No. 1119 (B.C. S.C.) [hereinafter Richardson].
5 Ibid.
6 Ibid.
7Rozenhart v. Skier's Sport Shop (Edmonton) Ltd., [2002] A.J. No. 1063 (Alta. Q.B.) at 96; aff'd [2004] A.J. No. 582 (Alta. C.A.) [hereinafter Rozenhart].
8 MacLeod v. Row, [1947] S.C.R. 420 (S.C.C.) [hereinafter MacLeod].
9 Ibid.
10 Supra note 7 at 96.
11 Ibid at 117.
12 [2002] B.C.J. No. 299 [hereinafter Ferris].
13 Ibid at 11.



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