In Karpouzis v. Toronto (City of), 2020 ONSC 143, the plaintiff went skateboarding on a trail in a City of Toronto park in the middle of the night. The trail was dark.
The plaintiff was 34 years old at the time. He was a very experienced skateboarder. He fell and sustained a serious brain injury. He sued the City of Toronto for negligence and public nuisance due to alleged visibility issues.
The plaintiff retained an expert who stated that the City had several options to eliminate hazards created by the unlighted trail, including closing the trail at night, adding lighting, installing guardrails or barriers to prevent people from entering the trail at night, or providing signs indicating that the trail is not lit or that the trail is closed at night.
On a summary judgment motion by the City, Justice Perell dismissed the plaintiff’s claim.
When a person enters a recreational trail for the purpose of a recreational activity and where no fee is paid for the entry or activity (except a fee to the government or a non-profit organization), the person is deemed to have willingly assumed all risks under section 4(3) of the Occupiers’ Liability Act.
Further, the usual standard of care on an occupier does not apply. Rather, there is a less stringent standard of care. Under section 4(1) of the Occupiers’ Liability Act, the occupier owes a duty to not create a danger with the deliberate intent of doing harm or damage and to not act with reckless disregard.
The plaintiff conceded that the City did not create a danger with a deliberate intent of doing harm. Therefore, in order to succeed on the claim, he had to prove that the City acted with reckless disregard.
Justice Perell noted that reckless disregard is more than mere carelessness or negligence. It is not reckless for an occupier to fail to warn or to take steps to protect a person on the premises from what ordinary persons would know and would appreciate or anticipate as common or usual dangers to be found on the premises.
Justice Perell held that, by regularly inspecting, maintaining, and keeping the trail clear of debris, the City did not have reckless disregard for users of the trail.
The plaintiff did not need to be warned of obvious conditions on the trail, including a slope and gradual curve, the fact that the trail was dark, and the possible presence of debris on the trail.
The lack of illumination on the trail was anticipated, not unexpected or a surprise. Moreover, it is not inherently reckless to allow nighttime use of a park or recreational trail.
Therefore, the City was not liable for the plaintiff’s accident under the Occupiers’ Liability Act.
Further, the claim against the City for public nuisance was dismissed. Justice Perell stated that “keeping a forested park open at night with an unilluminated trail does not interfere with the public’s health safety, morality, or convenience”.
The decision is a common sense outcome. Requiring municipalities to take the steps suggested by the plaintiff would be expensive and impractical. It would also be unnecessary. It is obvious that skateboarding in a dark park at nighttime is risky.