With the Winter Olympics in Pyeongchang having completed, we can’t be the only ones thinking of taking some time off for our own snowy sporting fun closer to home. One popular, practical, and relatively inexpensive option for winter-time thrill-seekers throughout Canada is tobogganing, also known as riding a thin board downhill at high speeds.
Not to spoil anyone’s fun this winter, but of all winter activities in Canada, tobogganing stands out as among the most dangerous. According to Parachute, a charitable organization that focuses on preventing serious injuries, research has shown that of every 100,000 tobogganers, an average of 37.7 are “catastrophically injured,” its term for a debilitating injury.
That makes tobogganing the fourth-highest cause of catastrophic injuries among sports activities in Canada — behind only snowmobiling, driving, and quadding.
But just because tobogganing is risky doesn’t mean it can’t be enjoyed safely, and, as we’ll see below, it doesn’t mean landowners and other occupiers are off the hook when someone is injured while tobogganing on their land.
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Tobogganing Safety Tips
According to Parachute’s figures, almost two-thirds of tobogganing injuries are preventable. Experts from Parachute and elsewhere have provided the following tips for safely enjoying tobogganing:
- Dress for the occasion. In Parachute’s study, half of tobogganers’ catastrophic injuries were caused to their heads. A sturdy helmet provides protection in the event of a collision, reducing the risk of a serious head injury. Parachute suggests a ski, snowboarding, or hockey helmet. And, as always when going out in cold weather, dress warm, using multiple layers.
- Inspect a hill before using it. Watch out for rocks, logs, ditches, and other hazards. Avoid tobogganing on icy days, as that can make the hill dangerously slick. Don’t toboggan near rivers, streets, or parking lots.
- Inspect your equipment before you begin. Broken or weak equipment can cause a tumble or send you careening into an obstacle, so make sure your toboggan is in good condition before using it.
- Adults should supervise children. In the study cited by Parachute, tobogganers were unsupervised in 93% of the catastrophic injuries for which such information was available.
- Be mindful of others. If multiple people are using the same hill, be mindful of others when timing your descent, and move quickly out of the way at the bottom.
Toboggan Accidents: Is the Landowner Liable?
Unfortunately, no set of precautions can completely eliminate the risk of injury while tobogganing. When an injury does occur, can the landowner or occupier be held liable?
Answering that question turns on a handful of legal issues. To help explain further, we should take a look back at a topic Uggenti v. City of Hamilton.
The Occupiers’ Liability Act
Section 3(1) of the OLA contains the general rule of liability for occupiers of premises:
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises . . . are reasonably safe while on the premises.
However, section 4(1) provides for a lower standard than that of reasonable care found in section 3(1). Section 4(1) says that, in the case of risks “willingly assumed by the person who enters on the premises,”
the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person . . . and to not act with reckless disregard of the presence of the person[.]
To “assume a risk” means to know of the risk and consent to it. As a result of section 4(1), a person who knows of a risk on the premises and nonetheless enters will be held to a higher standard when trying to impose liability on the occupier if that risk results in injury.
Uggenti v. City of Hamilton
To illustrate these principles, consider the case of Uggenti v. City of Hamilton, which was an appeal from arbitration decided by the Ontario Superior Court of Justice in 2013.
In Uggenti, the plaintiffs were injured while tobogganing on a hill in Hamilton. At the bottom of the hill was a ditch, but because it was filled with snow, the Uggentis did not realize it was there. When their toboggan hit the edge of the ditch, the Uggentis were thrown, and the husband sustained serious injuries.
In contrast to the Uggentis, the city government was aware of the ditch, and it was concerned about the risk it posed to tobogganers. Yet, other than prohibiting tobogganing on that hill — a fact the Uggentis were also unaware of — the city did not try to warn potential users that the ditch existed beneath the snow.
Under the OLA’s general rule in section 3(1), that failure to warn could support liability on the part of the city. But if the Uggentis had assumed the risk of the unseen terrain by tobogganing on the hill, then the lower standard of section 4(1) would apply, and the city would not be liable.
First the arbitrator, and then the court, concluded that the Uggentis had not assumed the risk of the ditch’s existence. As the court explained, “[i]n order for someone to voluntarily assume risk, that person must be aware of the existence of the risk.” Since the Uggentis were not aware of the ditch, they did not assume the risk of being thrown by hitting its edge, and the city was liable for their injuries.
(The city tried to save itself by relying on sections 4(3) and 4(4) of the OLA, which provide that a person is deemed to have assumed the risk when entering premises under certain circumstances, including by entering specific types of premises — such as utility rights-of-way and corridors or marked recreational trails — for a recreational activity for which no payment was made. The arbitrator and court each held that the hill in question was none of those, and so the deeming provision of sections 4(3) and 4(4) did not apply.)
Toboggan Accident Lawyers in Toronto
Like most outdoor activities people engage in for fun, tobogganing is inherently risky. However, there are some simple steps that anyone can take to reduce the risk of injury while enjoying the wintertime sport.
In addition, just because a person undertakes the inherent risks of tobogganing doesn’t mean that he or she assumes any and all risks that may arise during that activity. In particular, if an individual is injured by unknown dangers on the premises while tobogganing, he or she may be able to hold the occupier of the land liable.
If you’ve been injured in this way, contact one of the personal injury lawyers of Preszler Law Firm for a free consultation. We can help you understand how the complexities of the Occupiers’ Liability Act apply to your injury, build your case, and obtain justice for you or your loved ones.