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Sport Injury – Lawsuit Against North Vancouver for Foul Ball Injury Dismissed

Sports are a large part of our society.  Millions of Canadians have participated in and have been spectators in amateur sports and professional sports.  Sport injuries to both participants and spectators are unfortunately common due to the inherent risks of the game.

Participants are deemed to accept the inherent risks of a sport injury if it occurs as part of “normal play”.  Where an injury occurs outside of what is considered normal play or it results outside of the expected risks of the game such as through reckless play, an injured claimant may be entitled to compensation for his or her injuries.

Spectators are also deemed to accept the inherent risks of sports.  Inherent risks to a spectator include the ordinary, reasonable and foreseeable risks associated with attending the sporting event.  This is especially true in baseball where, for example, spectators face the risk of injury from foul balls.  Where this known and foreseeable risk exists, the occupier of the sporting event is legally required to put safety measures in place to protect spectators from injury such as protective netting.   Where these safety measures do not exist or they are not up to industry standard, then there may be liability on behalf of the occupier and compensation available to the injured claimant.  The principle behind this is that the occupier or host of the sporting event has a legal duty to ensure the facility is “reasonably” safe for all fans.  Liability for an occupier of a sporting competition is commonly based either in negligence or under the Occupier’s Liability Act.  As it relates to reasonableness, an occupier is required to take reasonable steps in all the circumstances to ensure that persons are reasonably safe on the premises.  In short, an occupier is not required to take all conceivable steps to guard against risk of injury.  Nor is an occupier required to take steps to guard against risk of injury that is not reasonably foreseeable.  Put another way, an occupier is not expected to safeguard those entering premises from every conceivable risk of injury, no matter how remote.

A spectator sport injury was discussed in the recent case of Rivers v. North Vancouver (District) 2020 BCSC 1050.  In this case, the injured claimant suffered serious injuries when he was struck in the head by a foul ball.  At the time, he was sitting in the bleachers watching his son play on 1 of 2 baseball diamonds which were side by side.  The injured claimant sued multiple parties involved with the sporting event.  The main defendant was the District of North Vancouver who owned the baseball park and who was responsible for the maintenance of the facilities and structures.

The injured claimant alleged that the District of North Vancouver failed to take reasonable steps to ensure his safety.  In particular, it was alleged that there was inadequate protective fencing, that were no warning signs of foul balls posted, that the bleachers ought to have been moved to a safer location and that protective netting should have been installed over the bleachers.

The trial judge ruled that the basic layout of the baseball diamonds was consistent with the industry standard of comparable parks.  There was no evidence of any deviation from industry standard or custom in the essential design and construction of baseball diamonds.  It was further noted that there was nothing unusual about the configuration or location of the bleachers.

The trial judge also considered whether the District of North Vancouver should have taken steps post-construction to make the premises safer for spectators.  It was found that there was no requirement to have done this which would held the district to a standard of near perfection.  In this regard, the trial judge stated:

“I must also consider whether the District should have taken any steps post-construction to make the premises safer for spectators, such as posting warning signs, covering the bleachers or moving home plate closer to the backstop.  In my view, none of those steps was required.  To require the District to have undertaken any or all of those things would be to hold the District to a standard of near perfection.  The District was not required to take all conceivable measures to make the premises as safe as possible for spectators.  Rather, it was required to take reasonable steps to render the premises reasonably safe.”

In dismissing the sport injury claim, the trial judge stated:

[82]         In this case, the more important of those factors are likelihood and gravity of harm.  Absent a sufficiently high degree of likelihood of potentially serious harm, an occupier might not be required to turn their mind to cost of remediation. In that context, I will assess the evidence of foul balls leaving the field of play and landing in the area of the South Bleachers.

[83]         With respect to the gravity of harm, I begin with an observation, derived from common sense as opposed to the specific evidence before me.  It seems obvious that the potential for serious injury from being struck with a foul ball in these circumstances is comparatively low.  Such foul balls are frequently caught with bare hands by spectators at Major League games.  They have exhausted all momentum caused by the swing of the bat and are simply obeying the law of gravity in their downward trajectory.  Such falling projectiles are far different than hockey pucks that leave a rink from an errant slap shot.  Likewise, they are different, and less dangerous, than line drive foul balls that travel with great velocity into, for instance, a player dugout.

[84]         In my view, the likelihood of a spectator being struck while seated in the South Bleachers was small.  I agree with the submission of the District that the affidavit evidence provides a small sample size from which to draw concrete conclusions about the frequency with which foul balls landed in those bleachers.  I find that such occurred occasionally, but certainly infrequently.  The practice, imperfect as it was, of people who saw the foul ball shouting a warning to alert those who may not have seen it, seems to have been relatively effective in preventing anybody from actually being struck, at least until the unfortunate incident at issue here.

[85]         I do not accept that foul balls were raining down on the South Bleachers with such frequency that some spectators felt compelled to shield themselves with open umbrellas, no matter what the weather conditions.  To be blunt, that evidence seems somewhat exaggerated.  Nor do I accept the plaintiff’s evidence that he was not aware that foul balls from field C could reach the South Bleachers.  His evidence was that he had seen foul balls leave field C while seated in the third base bleachers there, but did not see where they landed.  He assumed it was in the grassy area between the diamonds.  The South Bleachers are situated within that grassy area, albeit at the northernmost edge. 

[86]         I find that there was a generally known, but minimal risk of foul balls from one diamond landing in the bleachers for the other diamond.  The spectators who sat in those bleachers relied on warning calls to alert them of errant baseballs, and such warnings were generally effective.  In this instance, there was a warning call, but the plaintiff did not hear it. 

[87]         In conclusion, I am not satisfied that the plaintiff has proved on a balance of probabilities that the District failed to meet the standard of care required by the Act or at common law.  The claim against the District is dismissed.

If you have suffered a sport injury, either as a participant or spectator, contact us for a free initial legal consultation to learn more about your legal rights.

Tags: Occupier's Liability, Sport Injury, Sport Injury Lawyer

"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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