Exceptional Risk Requirement For Foul Ball Failure To Warn: Rivers v. North Vancouver (District)

• Published date: 22 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Trials & Appeals & Compensation, Personal Injury, Sport
• Law Firm: CLC (Canadian Litigation Counsel)
• Author: Mr Romany Benham-Parker (Whitelaw Twining)

In Rivers v. North Vancouver (District) et al, 2020 BCSC 1050, the plaintiff's action for personal injuries was summarily dismissed against all defendants, including the various sports leagues and the District of North Vancouver. In dismissing the actions against the sports' leagues, Justice Tammen gave important insight into the definition of "occupier" under the Occupiers Liability Act, RSBC 1996 c.337 (the "Act") and the exceptional risk test that is required in order to impose a duty to warn on an occupier.

The plaintiff, a 58 year old man, was watching his 16 year old son's baseball game at Inter River Park in North Vancouver. While focussed on the game, he was unfortunately struck on the head by a foul ball from another nearby baseball diamond and suffered injuries as a result. The plaintiff sued the District of North Vancouver as well as Little League Baseball Canada and the "League Defendants" (including Mount Seymour Little League Association and West Vancouver Little League Society).

The Claim against the League Defendants

The League Defendants host little league baseball games at Inter River Park. For the purpose of the summary trial, both the League Defendants and the District of North Vancouver conceded to being occupiers under the Occupiers Liability Act (the "Act").

The plaintiff alleged that the League Defendants had been negligent for failing to warn spectators of the exceptional risk of foul balls, failing to bring such risk of injury to the attention of the District of North Vancouver, and failing to cease playing baseball simultaneously at both diamonds despite having known of this risk.

Justice Tammen set out that while the League Defendants owed a duty as occupiers under the Act, in order to impose a duty to ameliorate or warn of the risk, the risk must be exceptional. An exceptional risk must be that "which was known, or could reasonably be expected to be known, to the defendant, but which would not be perceived or appreciated by an ordinary person exercising common sense" (at para 90).

Justice Tammen held that this heightened test was not met as an ordinary person in the shoes of the plaintiff would have been aware of the risk of foul balls leaving the field of play and landing in the spectator bleachers. The League Defendants' lack of a duty to warn was based in part on (1) affidavit evidence of users of the park who had knowledge of the risk of foul balls leaving the diamonds; (2), no evidence of a particularly unique hazard at...