Fans Beware: The Risks Of Watching Your Favourite Athletes*

Toronto has once again found itself in the throes of sports fanaticism this year. The Blue Jays repeated the successes of last year's meteoric rise to the American League Division Series Championship. The Toronto FC just concluded a competitive campaign, losing the MLS Cup to the Seattle Sounders. The Raptors are in the midst of their own campaign for a fourth straight Atlantic Division title. The city has become a hotbed of hockey activity. It welcomed the best players in the National Hockey League as they competed in the World Cup of Hockey and will host the newest generation of hockey talents in the World Junior Hockey Championships.

Millions of fans from across the country attend sporting events to experience the highs and lows of these thrilling journeys with their favourite athletes. However, when these large, boisterous crowds are exposed to the very real dangers of injury at sporting events, things can take a sharp turn for the worst.

The risk of spectator injury at sporting events cannot be overstated. For example, nearly 1,750 spectators are injured each year by batted balls, mostly fouls, at major league baseball games, or at least twice every three games.2 In the span of 127 National Hockey League ("NHL") games, pucks injured 122 people, 90 of which required stitches, and 57 required transport to a hospital emergency room.3

Due to the dangers associated with attending professional sporting events, such as hockey and baseball, leagues across North America have taken action to limit sports-related injuries through the implementation of various safety regulations. These include shielding fans with protective netting and warnings to fans to remain alert at all times for the possibility of errant balls or other objects through the form of public service announcements and warnings printed on tickets and signs.

These safety measures are necessary, as occupiers have a legal duty to ensure that the venue where a sporting event is held is reasonably safe for spectators. Moreover, by implementing measure to minimize the risk of injury, occupiers protect the "fans whose money and support act as the lifeline to the survival of the sport as a business."4

Occupiers are not required to maintain an absolutely risk-free environment. Rather courts will consider the type of event, the inherent risks involved, and the industry safety standards when determining whether an injury to a fan was reasonably foreseeable. This paper will discuss common claims pursued by spectators as well as possible defences that can be employed by occupiers.

Causes of Action

An injured spectator can pursue a cause of action against an occupier in one of two ways. The first way is to commence an action for breach of contract. A fan who has paid for a ticket to a sporting event has a contractual right to enter and use the premises. Should that fan be injured, they can pursue the occupier for breaching the implied term that the seat sold to them will be safe.

However, the second, and more common means for an injured fan to sue an occupier is to pursue a cause of action under the provincial Occupiers' Liability Act (the "Act").5 This type of action will be the focus of this paper.

1. OVERVIEW OF LEGISLATIVESCHEME

   The Act has now been in force in Ontario for the past 16 years. In enacting this legislation, the Legislature attempted to create a balance between ensuring the safety of individuals entering a given premises, and the need to encourage occupiers to allow for recreational use on the property without fear of litigation.

   Section 1 of the Act defines an occupier to include people in physical possession of the premises or who are responsible for, or have control over, its condition, the activities conducted there, or the persons allowed...