He Was A Skater Boy – An OLA Claim On Recreational Premises

Around 2 a.m. on a June 2011 night, the plaintiff decided to go skateboarding on an unlit recreational path at the South Humber Park for a cardio workout. He was not wearing a helmet or any protective gear. He was sober, alone and did not have a flashlight. He was familiar with the trail, having ridden his mountain bike on it often. He was also an experienced skateboarder. The plaintiff believed he would be able to see well enough along the trail and there were no signs posted warning of any visibility issues.

The City's Park is open to the public every day, 24 hours a day. There are no signs prohibiting trail use at night or warning of limited visibility. The trail, which begins in a grassy area, is initially covered in asphalt, before gradually sloping down into a wooded area. There is no artificial lighting on the trail. The City maintained the trail once a week.

After entering the treed portion of the trail, a canopy of trees eliminated all natural light at night. The wheels of the plaintiff's skateboard froze, possibly due to being jammed by debris / rough terrain that he was unable to see and avoid. The plaintiff was thrown from his skateboard. Amongst other injuries, he suffered a serious brain injury (left frontal contusion and right occipital fracture extending into the skull base). The plaintiff's expert accident reconstructionist provided evidence that the light on the trail went from 19 LUX (a measure of illumination) at the start, to between 2.5-7.0 LUX at the entrance to the trail, and ultimately to an undetectable level of LUX in the area where the accident occurred. The expert opined that the rapid change in illumination caused the plaintiff to fall from his skateboard.

The plaintiff sued the City for negligence and public nuisance. The City moved for summary judgment.

With respect to the negligence claim, the Court noted that the Occupiers' Liability Act imposes a lower standard of care when a person enters premises for the purpose of a recreational activity. In such instances, the occupier owes a duty to (i) not create a danger with the deliberate intent of doing harm / damage to the person or his property and (ii) to not act with reckless disregard of the presence of the person or his property. In other words, the higher positive duty for occupiers to take reasonable care of the premises does not apply.

To constitute reckless disregard, the evidence should show that the occupier knew or should have known that injury was...