When Neighbourly Play Turns Negligent

Parents frequently allow their children to play at neighbouring properties. When this occurs, parents often mistakenly assume there is a mutual understanding on the acceptable standard of parental care, despite never discussing this issue with their neighbours.

This is what happened with the Lever and Katerberg families in Lever et. al. v. Katerberg, 2019 ONSC 48 ("Lever").

In Lever, the neighbourhood children frequently played together on their lawns. The lack of communication with respect to the acceptable standard of parental care was never an issue until the leg of a 5 year old was accidentally mangled by a lawn mower while playing on her neighbour's lawn.

This article will review the decision of Lever with respect to a summary judgment motion addressing the Occupiers' Liability Act, R.S.O. 1990, c. O.2, and the liability of parents.

The Incident

On a Friday evening in the summer of 2004, Allen Katerberg ("Mr. Katerberg") returned to his home after working for the day and decided to mow his lawn, a big open area, part of which could be seen from the neighbouring Lever property.

At that time, his 5 year old son, Thomas Katerberg, was playing on the Katerberg property, with his neighbours, Bronwen Lever, age 5, and William Lever, age 9. Mr. Katerberg was aware that the children were playing on his property.

While Mr. Katerberg was mowing his lawn with a riding lawn mower, his son climbed on the back of the mower and draped his body around Mr. Katerberg.

With his son still on the mower, Mr. Katerberg looked over his right shoulder while reversing in order to get up a small incline. At the same time, Bronwen Lever slipped and her left leg slid under the blade of the riding lawn mower.

Mr. Katerberg then went forward and noticed Bronwen Lever on the ground. He immediately picked her up and ran to his house.

Bronwen Lever sustained significant and disfiguring injuries to her left leg, ankle, and foot, which resulted in loss of bone, muscle, soft tissue and skin. She required several surgeries.

The Lawsuit, the Law & the Summary Judgment Motion

The Lever family, consisting of parents, Mary Beth Rutherford and Timothy Lever, and their two children, sued their neighbour, Mr. Katerberg.

Under the Occupiers' Liability Act, Mr. Katerberg, as the owner and occupier of the property where the incident occurred, had an obligation to take such care as was reasonably necessary in all the circumstances to see that Bronwen Lever was safe while on his...