Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision in Arksey v Sky Zone Toronto, 2021 ONSC 4594. In that case, the defendant moved for a summary judgment motion to dismiss the plaintiff’s claim for damages for personal injury. The plaintiff was injured when attending at the defendant’s premises, Sky Zone, a trampoline recreation center. The motion is based on the terms of a waiver and release of liability signed by the plaintiff.

Facts

The plaintiff went to the defendant’s facility to play trampoline dodgeball. The plaintiff signed a liability waiver at a waiver kiosk at the facility. The waiver was presented on a computer touch screen. The plaintiff had to touch the screen to agree to the terms.

The plaintiff was directed to her friends’ game without anyone instructing her on the rules of the game or safety protocols. There was no employee present in the game room to monitor the game. The plaintiff says that while she was in mid-air someone on her own side of the court threw a ball that hit her on the back of her right knee. She felt a snapping sensation and stumbled off the trampoline.

She rested for about 20 minutes when an employee came to see her. The employee then suggested that the plaintiff go back in the game. The plaintiff then climbed back onto the trampoline. On bouncing, she landed on her right leg and felt a drastic increase in pain and swelling in her knee.  The expert believed that the plaintiff suffered a right knee medial meniscus tear and anterior cruciate ligament tear and that her injuries were caused by the second round of jumping rather than by her initial injury.

The defendant’s witness on discovery agreed that its policies were not followed by the employee who came to the plaintiff’s aid after her first injury. At minimum, he should have reported the injury to the manager and given the plaintiff ice.

Analysis

The issue was whether the plaintiff waived her claims for damages arising from the risk of injury caused by the defendant’s failure to instruct or supervise on the rules of the game and its failure to follow its injury policies.

The plaintiff alleged that the defendant failed to instruct the plaintiff on the rules of the game, and further failed to supervise the game. Further, the defendant failed to follow its own policies and instead encouraged the plaintiff to return to play where she was significantly injured. The plaintiff argued that neither of these scenarios fell within the waiver drafted by the defendant.

Quoting a British Colombia Court of Appeal decision, the judge stated that a person who signs a waiver is presumed to have intended to be bound by it. Also, it is generally not an excuse to say that one did not read the contract she signed.

There is no obligation on the defendant to ensure that the plaintiff has read the agreement she voluntarily signed. If a plaintiff is provided with an opportunity to read the agreement, it is up to her to choose whether to read it or not.

Here, there was no issue that the plaintiff did not consent to the terms of the waiver.

In this case, the defendant directed the plaintiff to a Waiver Kiosk to review its required waiver. At the Waiver Kiosk, the plaintiff interacted with a computer with a touchscreen.

The judge goes through the various headings of the waiver, noting the size of the font. One of the waivers reads,

SKY ZONE INDOOR TRAMPOLINE PARK

Assumption of Risks, Release of Liability, Waiver of Claims and Indemnity Agreement.

By signing this document, you will waive certain legal rights, including the right to sue.

PLEASE READ CAREFULLY!

The legal terms then follow. The form requires the plaintiff to touch her finger to a box beside each of the two key paragraphs on the screen to specifically enter a checkmark beside the words “I agree” beside each paragraph.

Paragraph 3 of the waiver reads,

I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Sky Zone and to waive any and all claims, demands, or causes of action that I have or may have in the future against Sky Zone and to release Sky Zone from any and all liability for any loss, damage, expense or injury including death that I may suffer or that my family, heirs, assigns, personal representatives and estate may suffer as a result of my participating in Sky Zone trampoline games or activities DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS’ LIABILITY ACT, R.S.O. 1990 c. O. 2 ON THE PART OF SKY ZONE AND FURTHER INCLUDING THE FAILURE ON THE PART OF SKY ZONE TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF SKY ZONE TRAMPOLINE GAMES OR ACTIVITIES.

The defendant must take reasonable steps to bring the terms of the waiver to the plaintiff’s attention under the Occupier’s Liability Act.

The defendant was clear with its waiver and not at all deceptive in what it required. If the plaintiff wanted to play at its premises, she had to agree to the terms of the waiver.

The waiver, by its express terms, warned of the risks that employees may not give complete instructions and warnings and that these risks could result in the employees negligently not protecting her from the dangers of playing.

The defendant took reasonable steps to bring the terms to the plaintiff’s attention. There was signage and a separate kiosk. Also, the computer screens required the plaintiff’s attention and deliberate, voluntary conduct.

Further, the contract covered the context in which the risks occurred in this case. The contract said expressly that employees may not give complete instructions and warnings and that participants cannot expect employees to keep them safe – in capital letters.

The deal here was that the plaintiff could use the defendant’s facility to play the risky game with her friends provided she did not hold the defendant responsible for damages incurred on the grounds waived. The plaintiff exercised her autonomy to weigh the risks and benefits of the proposed transaction. She then entered into an agreement that affected her legal rights.

In conclusion, the action was dismissed.

Comparison with Zaky v. 2285771 Ontario Inc.

This case is quite similar to that of Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380. That case too was a summary judgment motion involving an injury at Skyzone trampoline park. However, in that case, the defendant’s summary judgment motion was dismissed.

In Zaky, the plaintiff testified that he was rushed into signing the waiver, and so there was a genuine issue for trial on the question of whether Sky Zone took reasonable steps to bring the terms of the waiver to the plaintiff’s attention. In Arksey, there was no evidence that the plaintiff was rushed when reviewing the waiver.

Further, the issue in the two cases was slightly different. In Arksey, the issue was whether the waiver captured the plaintiff’s claim that she had injured herself because the defendant failed to follow its policies and failed to instruct or supervise the plaintiff.  The issue in Zaky was if Sky Zone took reasonable steps to bring the terms of the waiver to the plaintiff’s attention.

Another distinguishing factor is that in Zaky, the plaintiff was not cross-examined on any of his evidence presented at the motion. In Arksey, the parties did cross-examine on affidavits.

Thus, although arising in very similar circumstances, there a number of key differences between Zaky and Arksey, namely that 1) the plaintiff in Zaky was apparently rushed when completing the waiver, and 2) there was no cross-examination on the affidavit evidence in Zaky and the evidence was otherwise unchallenged, which led the Court to find it inappropriate to conclude that there was no genuine issue for trial. As a result, the defendant’s summary judgment motion was dismissed in Zaky, but granted in Arksey.