City Held Liable for the presence of a hill in a Park

Written on September 14, 2011.

The Alberta Court of Appeal in Christensen v. Calgary (City), recently dismissed an appeal by the City seeking to overturn a trial decision in which the City was held liable to two in-line skaters who had been injured while attempting to skate down a pathway on a hill within a city park.

At trial, the Plaintiffs’ expert on in-line skating rated the pathway descent where the accidents occurred as difficult and dangerous for a beginner to intermediate skater and challenging for some expert skaters depending on other variables.

The trial Judge found that the hill was not reasonably safe and that there was a foreseeable risk of harm to in-line skaters. In so holding, she made the following findings of fact in reliance upon the agreed statement of facts and trial testimony:

The City knew the pathways were used by in-line skaters and expressly approved of this usage.

This is public land which the City has specifically designated and built for recreational use.

The City has chosen to adopt a policy of multiple use.

To the City’s knowledge, the users of the pathway will be engaged in multiple different activities and have a range of personal abilities in respect of those activities.

The trial Judge applied Alberta’s Occupier’s Liability Act, which at the time of the accidents in question stated: “An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.” This provision is the equivalent of s. 3 of Ontario’s Occupier’s Liability Act.

The trial involved two Plaintiffs who were injured on different dates. By the time of the second accident, the City had installed two signs at the hill which stated:

“ATTENTION IN-LINE SKATERS, STEEP HILL/SHARP CURVE FROM HERE TO THE BRIDGE, USE EXTREME CAUTION.”

The trial Judge held that these signs and the warnings they contained were not sufficient given the nature of the danger to in-line skaters presented by the hill, applying section 9 of the Alberta OLA, which states:

“A warning, without more, shall not be treated as absolving an occupier from discharging the common duty of care to the occupier’s visitor unless in all of the circumstances the warning is enough to enable the visitor to be reasonably safe“

NOTE: The Alberta Occupier’s Liability Act was amended after these two accidents happened but before trial, to lower the duty of care owed by municipalities for “recreational trails” like the one in this case, to one of being liable only for “willful or reckless conduct”. Therefore the City was unfortunately caught being held to a much higher standard of care in respect to these two Plaintiffs, than it now would.

This decision is an interesting example of how the law of Occupier’s Liability differs betwen Alberta and Ontario, despite having many similarities. It is also clear validation of the legislative changes made in both Provinces to lower the duty of care owed to users of recreational trails. After all, if municipalities are going to face being sued for every roller-blading accident that happens on a recreational trail/path in its parks, it might as well simply close the trails and ban roller-blading altogether via by-law. What kind of a world would that be?