Author: M. Steven Rastin1

Any consideration of Municipal and/or Government liability should rightly view areas relating to road and sidewalk maintenance as well as Building Code compliance as topics of primary concern. Another area of potential liability that warrants consideration, however, is the potential liability risk related to outdoor recreational spaces such as playgrounds and parks. This targeted paper will consider three specific questions relating to this area of potential litigation. Specifically, does a municipality owe an increased duty of care to a minor? What is the current state of law with respect to bouncy castle liability? And, what does a municipality need to know about potential risks associated with changing uses of recreational spaces. We will address each question separately.

Does a Municipality Owe an Increased Duty to a Minor?

In considering whether a municipality owes an increased duty of care to minors, consider the situation where a road is built next or near to a school. According to the Highway Traffic Act2, it is appropriate to designate a lower speed limit in such areas, suggestive of the need to special care in these areas:

Rate in school zones
128(5) The council of a municipality may by by-law, (a) designate a portion of a highway under its jurisdiction that adjoins the entrance to or exit from a school and that is within 150 metres along the highway in either direction beyond the limits of the land used for the purposes of the school; and
(b) for motor vehicles driven, on days on which school is regularly held, on the portion of a highway so designated, prescribe a rate of speed that is lower than the rate of speed otherwise prescribed under subsection (1) or (2) for that portion of highway, and prescribe the time or times at which the speed limit is effective.

Further, there is a bylaw enacted under the Highway Traffic Act, the Signs3 bylaw, which dictates that, where a section of highway in designated in accordance with the above noted section of the HTA, a specific sign must be erected to indicate to motorists that they should be on the lookout for children:

5.(1) Where the council of a municipality designates a portion of a highway under subsection 128 (5) of the Act, a speed limit sign,
(a) that,
(i) has the dimensions and bears the markings as illustrated in Figure A,
(ii) is electrically illuminated from within the sign and legible to approaching drivers only when the sign is illuminated, or
(iii) is a mechanically operated louvered type sign which displays the prescribed markings only during the period of operation; or

(b) that,
(i) has the dimensions and bears the markings as illustrated in Figure B, or
(ii) is similar to the sign referred to in subclause (i) except that it does not include a tab sign bearing the legend "km/h",
shall be erected in accordance with section 4 at the commencement of the portion of the highway so designated.

Again, the duty imposed by the HTA upon a municipality to enact special measures to ensure the safety of children on the road connotes an increased duty on behalf of the municipality with respect to minors.

Despite this increased duty, it appears that it is not so high as to impose liability on a municipality if it fails to post the appropriate signage. There are cases across Canada where cities have been sued when children were injured on roadways on which no signage had been posted regarding the close proximity of a school. Despite this failure of the part of the municipalities, the courts have not found them liable for damages sustained by such injured children4.

But what about other circumstances? Does a municipality bear an increased duty to minors in non-legislated scenarios? Apparently, the answer is yes – at least in some cases. Consider the case of Burns v Canadian National Railway5, where the city had received numerous complaints of children gaining access to the railway lands. Eventually a child gained access to the tracks and was tragically killed by a train. In its reasons for judgment, the Ontario Superior Court of Justice determined that, “once Nepean became aware of trespass problems, it had a duty to inspect and take remedial action, whatever that may be, in respect of those problems”6. After finding that the city was aware that there were gaps in the fence in certain areas, and that children were accessing such gaps and thus gaining access to the forbidden area immediately surrounding the railway track, the court stated:

... It was a serious problem. It was an important problem because we were dealing with the safety of children and, as I said, no difficulty with the duty of care by both parties here towards the presence of children, which they know or ought to know are on adjacent property and are accessing a railway.7

In recognition of the duty imposed upon the municipality and particularly in light of the fact that there were children at risk, the court stated:

70 In my view, there was an obligation on them because of the very importance and because of the very great risk to the children of their area and the accessing and the railway, that something be done immediately to see to it that Transport Canada or CN or somebody do something, whether it be a fence or be another remedial action - jointly - but whether that be done jointly by the two, CN and Nepean, or alone, we do not know what would have happened had negotiations taken place, but there was that obligation upon them. It goes without saying that, by having a buffer zone there, that that only added to their duty to the children and other people who were users of that buffer zone because that was an invitation to these people to come and use that; an invitation to children to come and use that buffer zone. That invitation was made in light of the presence of a high speed railroad next to it, with fencing which they now know, by reason of these complaints, are inadequate to resolve the problem.8

The court went to some lengths in this case to point out that the duty upon the municipality was higher because it involved the safety of children.

This will not always be the case though, even in other railroad safety cases. In Russell (Litigation Guardian of) v Canadian National Railway Co.9, the Ontario Superior Court of Justice again considered a case where a child (a 14 year old boy) had been severely injured when he attempted to hop a freight train near a railway bridge, which he had accessed through school grounds. The action commenced by the plaintiff against the Town was dismissed because it was found that the Town owed no duty of care to the child to have erected a fence in the area where the child had accessed the bridge. Further, there was no evidence that the Town had any knowledge that the public could access trains via that particular bridge, nor that the issue of public access to railway lands was in any problematic prior to the accident. Thus, it was the Town’s lack of knowledge of train hopping carried out by youths in the community in addition to overall lack of knowledge of public access to the bridge in question, that essentially placed the Town outside the realm of liability. The court concluded in this case by stating that, “municipalities are not guarantors of the safety of its citizens. There is no duty on a municipality to protect its citizens from their own negligence”10. Apparently, as evidenced by the court’s ruling in the case, this sentiment extends to children.

Courts of other Canadian provinces have also found municipalities liable in non-legislated scenarios, such as in Pritchett (Guardian ad litem of) v Gander (Town)11, where the Newfoundland Court of Appeal heard a case involving a 10 year old boy who had been playing on a playground owned and operated by the defendant town. The plaintiff and some other children had taken boards that had come loose from the sandbox and were employing them as a makeshift seesaw. When one of the boards flew up and struck the plaintiff in the face, he suffered injury and consequently brought a claim against, amongst others, the town that owned the park. The trial judge allowed the claim against the town and the Court of Appeal upheld the decision on grounds that the town had failed to carry out the inspections necessary to ensure the safety of the playground, and that such failure was an operational matter which was capable of drawing liability:

86 It is, however, necessary to decide the degree in respect of which each of the appellant and third respondent has been at fault in order to enable them, again in the words of the Contributory Negligence Act, "to make contribution to and indemnify each other". Taking into consideration the fact that, as between the appellant and the third respondent, it was the third respondent who was responsible for the positive and deliberate actions which were the primary cause of the injury, he ought to bear the major portion of the responsibility apportioned to him and the appellant. On the other hand, although the injury did not flow directly from any inherent danger in the boards, or the fact that they were dislodged and lying near the fence or the sandbox, nevertheless all of the witnesses called by the appellant indicated that such dislodged boards lying around a park intended for use by children would be considered a hazard. The appellant has responsibility for having failed to carry out the inspections that its Director of Recreation said should have been done in the normal course. Bearing in mind that the park is intended to be a playground for children, the failure to inspect is not an insignificant failure. It cannot however be equated with responsibility for the positive and deliberate acts which caused the injury. Accordingly I would apportion responsibility, as between the appellant and the third respondent to be one third to the appellant and two thirds to the third respondent.12
(emphasis added)

The Court of Appeal did reduce the Town’s responsibility to 15% contributory negligence, but what is important is that the municipality was found liable at all. Moreover, the language used by the court in the above excerpted passage indicates that the duty owed minors is not insignificant, particularly where it is known that children will be frequenting the facility in question, or indeed if they are intended to frequent such facility.

Taken together, this examination of the legislation and case law reveals that indeed, municipalities do owe an increased duty of care to minors, in certain circumstances. Where a road is located near a school, for example, the Ontario Highway Traffic Act demands that a municipality post certain signage to indicate to the general public that children will be crossing in the area, and also indicating a reduced speed limit in such zones. However, the case law across the country also demonstrates that, where municipalities have failed to carry out their duties in respect of appropriate signage, the courts have elected not to find such municipalities liable to an injured minor. Despite this, the courts have repeatedly stated that there is an increased duty owed to minors in general, and that such duty is not insignificant. The Burns and Russell decisions suggest that the court will be more apt to find a municipality liable for injury sustained by a minor where the city was aware that there was a risk or danger to children, and elected not to take any steps to rectify such risk. At the end of the day, as children are among the most vulnerable in our society, given that they cannot fend for themselves and cannot be expected to always make intelligent, well informed decisions (not through any fault of their own, but rather because they lack the tools necessary to make smart choices), it could be said that society as a whole, including the city in which a minor lives, should all strive to undertake to ensure the health and safety of the children in our communities.

Bouncy Castles and Municipal Liability

Given the inherent danger apparently represented by the “bouncy castle” (alternatively known as a bounce house, moon walk, space walk or inflatable, amongst other monikers), it is somewhat surprising that there is a dearth of case law on the issue. This is particularly so given the well documented cases of injury resulting from use of such recreational facilities, including the death of a 5 year old child in the United Kingdom in 200313 and the injury of 13 people in Long Island, New York who were carried off, while inside the bouncy castle, by a strong gust of wind in June 201114. The Public Health Agency of Canada published a study in June 2013 in the journal “Chronic Diseases and Injuries in Canada” that studied the epidemiology of inflatable related injuries appearing in Canadian emergency rooms and concluded that 674 cases were identified over a 20 year period, during which time there was an average annual increase of 24.6%, with children aged 2-9 being the most frequently injured and fractures accounting for 34.5% of all reported injuries15. The National Post also published an article as recently as this past summer, articulating concern with the rising number of injuries associated with the bouncy castle and similar inflatables.16 There even exists an American website dedicated to bounce house injuries, www.bouncehouseinjuries.com, which is really the website of a law firm which purportedly dedicates itself to dealing exclusively with litigation arising from bounce house injuries17.

Despite this alarming data, there is, as previously stated, an absence of case law on the subject. There was one 2005 case in the United Kingdom where the parents of an 11 year old child who had suffered severe and permanent brain damage after being accidentally kicked in the head by a 15 year old child, while both were in the bouncy castle, commenced a lawsuit against the parents who had hired the bouncy castle for the party at which the injury occurred. The claim alleged that the parents had violated the standard of care necessary for supervising children engaging in such activity and initially the court agreed, awarding the parents of the injured child an estimated £1 million. The ruling was successfully overturned in 2008, with the appeals court stating that, “[t]he manner in which [the parents] were supervising the activities on the bouncy castle … accorded with the demands of reasonable care for the children using them. The accident was a freak and tragic accident. It occurred without fault”. 18

The sole Canadian case that appears to have made it all the way to court is Zeismann v Wonder Shows Ltd.19, in which the plaintiff child had broken his leg while participating in the “Moonwalk” (an activity distinguished from a bouncy castle in name only) when he was just 3 ½ years old. The child’s parents brought an action on his behalf against the owners of the amusement park where the incident had occurred, citing occupier’s liability. After noting that, “[o]ne must recognize that bouncing in relatively close quarters with other children, either big or small, has its risks. One could anticipate that children would bounce and fall together, such that there would be bumps and bruises”, the court dismissed the claim in its entirety. The court was not convinced that the attendant had failed to be present while the children were in the Moonwalk and placed great emphasis on the fact that the child’s father was himself standing right outside the entire time his son was inside the Moonwalk, and didn’t see any reason to complain about what was taking place. Indeed, he had not only allowed his son to participate, but he also failed to complain on either the day of or the day following the incident. Concluding that the only possible area of breach related to allowing both older, larger children and younger, smaller children to play inside at the same time, this ground of complaint also failed since, despite evidence that younger and older children were being allowed to play inside together, the absence of any complaint to the amusement park effected the “requisite degree of proof upon the plaintiffs”20.

I would caution, however, that the lack of court-reported case law does not mean that there have not been more than these few cases. An article published in the Spring of 2013 in the London Free Press (Ontario) focussed on the fact that the alarming increase in injuries suffered in bouncy castles was causing municipalities to consider their liability21. Citing London, Ontario as an example, the article mentioned that the City of London was set to pass a by-law that would see operators of bouncy castles forced to carry a $5 million general liability insurance policy in regard to same. This by-law was in fact passed in April 2013, with the City of London Council Policy Manual now reflecting in Chapter 17(14) a chapter related to “inflatable amusement devices” which, amongst other things, dictates that any person operating such a device on municipal property is now required to ensure that, “[t]he rental contract holder provides evidence of at least $5 million general liability insurance from the inflatable amusement device Provider, which includes bodily injury and property damage and which does not include any exclusionary clauses regarding use of the device(s) at the rental event”22. Perhaps it is unsurprising that the City of London was prompted to take such action, given that the Manager of Recreation Services for the West end of London acknowledged in the London Free Press article that the City had in 1999 been hit with a lawsuit regarding someone who’d been injured on an inflatable device on city property, though he would not comment on the outcome. This of course suggests that, even in the absence of case law that has made it through the court system in this country, there is the possibility that a plethora of such cases exist, that have been quietly settled out of court.

Given the conclusions of the various studies that have been conducted in relation to bouncy castle related injury which have concluded that such injuries are on the rise, it would appear to be prudent, at least, for a municipality to follow the lead of the City of London, Ontario and enact a by-law requiring those persons who want to run an inflatable activity on municipal property to first ensure that they have acquired a certain minimum amount of insurance in related to such activity. In this way the municipality can ensure that it has “covered its bases” and is protected from potential lawsuits.

Addressing Changing Uses of Municipal Facilities

When a municipality decides to allow a change in use of a public facility, say, from changing a pedestrian hiking trail to include bicyclists as well, the question of whether any liabilities will accompany such change arises, as does the question of how quickly a municipality must address such changes. Bear in mind, the change in use may not even be at the behest of the municipality itself, rather the public may simply have begun to use a certain space in a way different from how it was intended to be used, or had historically been used. Regardless of where the idea for the change in use came from, the municipality can potentially bear liability for any damages that arises from a use of municipal property.

An excellent example of this is provided in the form of the case Mott v Brantford23, a relatively recent Ontario Superior Court of Justice case involving a 16 year old skateboarder named Bobby Joe Mott who suffered extensive injuries to his arms and back when, while skateboarding at the Brantford Civic Centre, he came into contact with a large plate glass window. It is important to note that, at some point, Brantford City Council had deemed it necessary to create a skateboard park for local children to use in the summer months (likely in an attempt to have the kids move from the city streets to a centralized location). In accordance with this decision, a temporary skateboard park was created in the parking lot at the Brantford Civic Centre and the court was satisfied, in its ruling, that the City of Brantford had in fact invited the skateboarders specifically to that location, “creating an attraction that would be most appealing to these kids”24. One July day in 1999, Bobby Joe, while horsing around with one of his friends, found himself striking, and breaking, a plate glass window. The accident (and subsequent injuries) did not arise as a result of skateboarding, per se, as Bobby Joe and his friend had been taking a break from boarding at the time the injuries were sustained.

The court considered the testimony of all of the experts, who advised that the glass was well within the parameters of the Building Code Act, 199225 and the Building Code26 but then noted the following testimony of Bobby Joe regarding the nature of the skateboarders:

57 I heard evidence from Bobby Mott that boarders were typically "risk takers". This feature, coupled with the complaints and history of vandalism, graffiti and hooliganism were (that were evidenced in the Council Minutes and confirmed by Mr. MacIssac and Ms. Curtis) were considerations that the plaintiff urged me to utilize when looking at the standard of care. The tenor was, that the City invited this new group to their facility; knowing of their reckless/risky tendencies and took no additional precautions for their safety. This, they suggest, is something I should consider under the "knew or ought to have known" component of foreseeability.27

Having considered the fact that the City had invited the skateboarders to make use of the former parking lot as a skate park, but that the accident itself had not happened as a result of the skateboarding activity, the court concluded that, given that the Civic Centre had used the same plate glass windows that comply with the Building Code since 1967 without incident, thus the City really had no reason to “‘know or ought to have known’ of the danger inherent in the use of plate versus safety glass”28. What is more important for purposes of this paper, however, is that although the court specifically found that the introduction of the skate park at the back of the parking lot should not have made the City consider utilizing a differently composed window structure, it continued to state that:

62 This may have been different if the park were immediately adjacent to the windows — it is not.29

The significance of this passage is that it suggests that the change in use by the City of a parking lot to a skateboarding park could potentially have resulted in an increased duty or responsibility of the City to the patrons of the park. The only reason it did not is because of the proximity of the skateboard park to the location of the accident. Had the injury occurred as a result of skateboarding, however, the results likely would have been very different, with the City having been found responsible to those members of its City choosing to skateboard in the former parking lot.

Another interesting case to consider is one arising out of the “Occupy Toronto” movement which began in the City of Toronto in the late autumn (October) of 2011. In Batty v Toronto (City)30, the court heard an application by members of the protest movement who had, without permits, erected tents and various other structures in St. James Park, located in downtown Toronto, essentially creating a campground within the city, in a public park. The City of Toronto delivered trespass notices to the protestors and demanded they stop building structures and leave the park between 12:00 a.m. – 5:30 a.m.. The applicant protestors brought an application challenging the validity of the Trespass Notice on grounds that it violated their rights under the Charter of Rights and Freedoms. What the protestors effectively sought was permission to treat a public park, which had historically been used by persons as a place to walk, read, sit under the trees, eat lunch and walk their dogs, into a campground. For a multitude of reasons which are beyond the scope of this topic, the court concluded that the Trespass Notice was constitutionally valid and dismissed the application of the protestors.

The significance of this decision is that, when the City of Toronto recognized that people were undertaking to change the use of St. James Park from public park to “tent city”, it took action to evict such persons for trespass, citing the fact that, “[m]any activities at St. James Park are contrary to City bylaws, policies and practices with respect to the use of City parks and other public space”31. In their arguments before the court, the City of Toronto cited several sections of the Toronto Municipal Code (the so-called “Parks bylaw”) which directly addressed the violations of the protestors. This decision suggests that, as soon as is practicable after a change in use by the public has been identified by a municipality, that municipality should take action to seek enforcement with the stated purpose of the facility, whether it be a park, a pedestrian trail, a cycling trail or any other municipally governed facility.

These cases demonstrate the need for a municipality to be aware of how its community is using the public facilities made available to it. If the municipality wishes to change use of an area, such as changing a parking lot to a skateboard park, then it will necessarily want to undertake an analysis to ensure that any health and safety concerns or other situations potentially giving rise to liability are addressed. Moreover, if the community decides of its own accord to alter the use of a public facility, a municipality should take care to have reference to its bylaws and quickly seek to enforce them to the fullest extent.

_______________________

1 I would like to thank and acknowledge the outstanding work or research lawyer Catherine Mahoney in the planning, research and drafting of this paper. Her contribution was invaluable. Catherine is responsible for most of the scholarly content and insight found in the paper. Any errors or omissions are, of course, my own.

2 RSO 1990, c H.8, s. 128(5).

3 RRO 1990, Reg 615, s. 5(1).

4 See, for example, Steele v Burgos, 2010 ABQB 327; Dao (Guardian ad litem of) v Sabatino, 16 CCLT (2d) 235 (BC SC); and Lloyd (Litigation Guardian of) v Rutter (2003), 2003 CarswellOnt 4909 (OSCJ).

5 1998 CarswellOnt 5041, affirmed by 133 OAC 392, 2000 CarswellOnt 2065, [2000] OJ No. 2206

6 Ibid at para 39.

7 Ibid at para 64.

8 Ibid at para 70.

9 (2004), 2 MPLR (4th) 114 (OSCJ).

10 Ibid at para 55.

11 (2000), 23 MPLR (3d) 1 (NLCA).

12 Ibid at para 86.

13 “Bouncy castle death ‘tragic accident’”, BBC News (January 8, 2004) online: http://news.bbc.co.uk/2/hi/uk_news/england/south_yorkshire/3380593.stm.

14 “Thirteen injured in new bouncy castle horror as inflatables are sent flying over Long Island soccer pitch”, Mail Online (June 6, 2011) online: http://www.dailymail.co.uk/news/article-1394572/Thirteen-injured-new-bouncy-castle-horror-inflatables-sent-flying-soccer-field.html.

15 S.R. McFaull and G. Keays, “Emergency department presentations for injuries associated with inflatable amusement structures, Canada, 1990-2009” Chronic Diseases and Injuries in Canada (June 2013), online: Public Health Agency of Canada http://www.phac-aspc.gc.ca/publicat/cdic-mcbc/33-3/ar-03-eng.php.

16 Tom Blackwell, “Bouncy castles linked to sharp rise in child injuries, but critics call risk of fractures and infection overblown”, National Post (August 15, 2013) online: http://news.nationalpost.com/2013/08/15/bouncy-castles-linked-to-sharp-rise-in-child-injuries-but-critics-call-risk-of-fractures-and-concussions-overblown/.

17 Online: Baird Law Group http://bouncehouseinjuries.com/.

18 Alexandra Topping, “Parents win appeal over head injury on bouncy castle”, The Guardian (August 1, 2008) online: http://www.theguardian.com/uk/2008/aug/01/law.

19 (1990), 65 Man R (2d) 155 (MB QB).

20 Ibid. At para 26.

21 Chip Martin, “Injury, liability worries have city looking at pumped-up municipal regulations”, London Free Press (March 18, 2013) online: http://www.lfpress.com/2013/03/17/injury-liability-worries-have-city-looking-at-pumped-up-municipal-regulations.

22“Use of Inflatable Amusement Devices During Rental of City Parks or Other Facilities” in Council Policy Manual, s. 17(14), online:http://www.london.ca/city-hall/council-policies/Documents/chapter17-final.pdf.

23 (2008), 42 MPLR (4th) 261 (OSCJ).

24 Ibid. At para 5.

25 S.O. 1992, c. 23.

26 O. Reg. 350/06.

27 Supra note 2 at para 57.

28 Supra note 2 at para 60.

29 Supra note 2 at para 61.

30 2011 ONSC 6862.

31 Ibid at para 52.