Occupiers’ Liability for Injury to Spectators
In the average National Hockey League game, ten to twelve pucks sail “over the glass” and into spectator seating areas. Similarly, Major League Baseball games may see more than forty baseballs finding their way into the stands. If you attended a professional hockey or baseball game prior to the turn of the century, you might remember a time when there was no protective netting shielding spectators from stray pucks or baseballs. This changed for the National Hockey League in 2002 after a child lost their life after being struck by a puck. Major League Baseball also took action following several instances of line drives causing serious harm to fans.
The question arises: who, if anyone, should be held liable for these types of injuries?
The issue of liability for injured spectators has roots dating back to ancient Rome. Roman law recognized an Aquilian action for spectators injured at sporting events, with the underlying rationale that non-participants should be safe from harm so long as they remained in designated spectator areas. This approach would later be displaced by English courts, which leaned heavily on a broader assumption of risk and the legal principle volenti non fit injuria, meaning “to a willing participant, no injury is done.” For instance, in the case of Murray v. Harringay Area, the court surprisingly concluded that a six-year-old had consented to being struck by a puck.[1] Speculation surrounds the reason for this shift, with some suggesting it was to protect those involved in the development and promotion of athletics.
In this article, we discuss the issue of determining who is at fault for these types of injuries in Canada and in what circumstances victims can expect to recover.
Basis for Liability in Ontario
In Ontario, the most common avenue of redress for injured spectators is through the Occupiers’ Liability Act.[2] The legislation states that an occupier of premises owes a duty to take such care as in all the circumstances is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.
The Occupiers’ Liability Act also contemplates the principle of volenti non fit injuria by precluding recovery for damages suffered as a result of risks that were willingly assumed.[3]
An injured spectator would have to establish four elements to recover compensation for injury:
1) the defendant is an occupier and therefore owed a duty of care to the plaintiff;
2) the defendant breached the standard of care by their actions and/or omissions;
3) the breach caused the plaintiff’s injuries; and
4) the plaintiff suffered damages.
In many cases, the focal point typically revolves around the second element, where the plaintiff must initially establish the necessary standard of care and subsequently demonstrate a breach.
The Supreme Court of Canada famously defined negligent conduct in Ryan v. Victoria (City):
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of the harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
Generally, these factors can be extrapolated in a straightforward manner to cases of spectator injuries. The following decisions from both a hockey and baseball context help illustrate the way courts have considered the above factors in practice.
The Ryan Factors in Spectator Injury Cases
Perhaps the most cited case in Canada on the issue of spectator injuries is Elliott v. Amphitheatre Ltd.[4] The plaintiff occupied a front-row seat in the defendant’s rink when they were struck by a puck deflected out of play. The plaintiff alleged the defendants were negligent by not installing protective netting in front of the seats. However, the Manitoba Court of King’s Bench dismissed the action, asserting that the defendant was not an insurer against all risks involved in attending sporting events. Instead, the court emphasized that the defendant was obligated to take reasonable measures to ensure spectator safety.
Likelihood and foreseeability of harm are considered by the Ontario Court of Appeal (known then as the Supreme Court) in Payne v. Maple Leaf Gardens Ltd.[5] The plaintiff was hit by an errant stick as a result of players grappling in front of them. The court found this conduct “so unusual and unexpected” that it could not have been reasonably foreseeable by the defendant arena. Again, the defendant was not required to protect spectators against all risks but only those which would be unreasonable to allow.
Switching to baseball, the Ontario Superior Court refers to the industry standard factor in Noonan v. Exhibition Place.[6] The defendant argued that their ballpark provided protection equal to or greater than that in other North American ballparks and had an expert testify to that fact. Conversely, the plaintiff argued that the netting behind home plate should have been extended to the respective dugouts. The court ultimately accepted the defendant’s position. Interestingly, netting extended beyond dugouts has now been erected by several Major League parks.
Finally, in Rivers v. North Vancouver (District),[7] the British Columbia Court of Appeal addressed all of the Ryan factors in upholding the lower court’s decision.The trial judge found that the frequency of balls entering the stands where the injury occurred was too infrequent to expect the owner of the field to protect against it. The judge further found the risk of serious harm from foul balls was comparatively low. Regarding signage warning of potential dangers, the judge held that such expectation was not corroborated by industry standard. It was noted that even had signs been in place, the but-for test would have failed given that the injury would have occurred anyway. The applicant’s argument that the defendants were required to eliminate all risks posed to spectators was unequivocally rejected.
Other Considerations & A Final Word
The law on the issue of spectator injuries appears relatively stable and the bar for establishing liability remains high. This unfortunately encourages occupiers to wait for injury to occur before taking action as first-time cases can be defended on the grounds of foreseeability.
There is one caveat for venue owners and event organizers – that is, an injury that was previously declared unrecoverable may become recoverable if the occupier becomes aware of the risk. Additionally, as sports become more intense and fast-paced, one could argue that what was once considered a reasonable risk may now be deemed unreasonable, requiring an elevated duty of care. Therefore, a previous denial of a claim in similar circumstances doesn’t guarantee failure for a subsequent claim. Both spectators and occupiers should consider obtaining legal advice if they find themselves in situations where the evolving nature of risks and the duty of care may impact their legal standing.
[1] [1951] 2 KB 529.
[2] RSO 1990, c O 2. Note that individual athletes may also be held liable through the tort of negligence.
[3] Ibid, s 4(1).
[4] 1934 CarswellMan 69.
[5] 1948 CarswellOnt 82.
[6] 1991 CarswellOnt 1555.
[7] 2021 BCCA 407.
