Tug-Of-War Gone Wrong: Who Is Liable When Participant's Arm Is Amputated

The stage was set. The tug-of-war pitted 20 or so trailer renters against 20 or so cottage renters. Disaster ensued.

In Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632, the Plaintiff, Timothy Bonello ("Bonello"), sought relief from an injury arising from a game of tug-of-war. Bonello put his left arm through one of the loops on the rope to get a better grip, but when the participants pulled the rope on each side, the loop closed and crushed Bonello's arm. Unfortunately, this injury resulted in the amputation of his forearm. The contest took place on a campground owned and operated by Gores Landing Marina (the "Marina"). The rope used for the contest was found by Joseph Davies Jr. ("Davies Junior") in a shed located on the Marina's property.

The Litigation Bonello brought an action against several parties, including the Marina, Davies Junior and Joseph Davies Sr. ("Davies Senior"), the principal of the Marina. In Bonello's claim, he asserted that the Marina and Davies Senior were negligent and also liable pursuant to the Occupiers' Liability Act. In addition, Bonello claimed that the defendants were vicariously liable for the negligent actions of Davies Junior. The Marina and Davies Senior responded with a summary judgment motion to dismiss the action.

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The motion judge found in favour of the moving party and dismissed Bonello's claim. Bonello appealed the motion judge's order to the Ontario Court of Appeal. The Court of Appeal allowed the Plaintiff's appeal, set aside the motion judge's order, and consequently allowed Bonello to continue his claim.

Analysis Part of the motion judge's decision included an order to not consider discovery evidence relevant to Marina and Davies Junior except that which they had provided themselves. The exclusion included the discovery evidence provided by Davies Junior.

The ONCA considered whether the motion judge erred by excluding the aforementioned discovery evidence. There are two relevant Rules of Civil Procedure with respect to the admission of discovery evidence. Rule 39.04 with motions and Rule 31.11 that deals with trials.

Rule 39.04: (1) On the hearing of a motion, a party may use in evidence an adverse party's examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition...