Tobogganing lawsuits very rarely make it to court

Renewed efforts to avoid tobogganing lawsuits in Hamilton have fuelled misconceptions around the likelihood of municipalities being successfully sued for allowing the activity on its property, says Toronto critical injury lawyer Patrick Brown.

“Are municipalities getting nailed with lawsuits for kids and families tobogganing on city property? Absolutely not,” says Brown. “Are they held responsible when they know someone will get hurt, but do nothing about it? Sometimes, but it is extremely rare. If there is a war by municipalities against tobogganing, don’t blame lawsuits.”

Uggenti v. Hamilton (City), 2013 ONCA 230, a lawsuit related to a Garth Street reservoir sledding accident, left the city on the hook for almost $1 million in damages and court costs, and has made Hamilton the poster child for the legal risks of tobogganing, reports the Hamilton Spectator.

‘No tobogganing’ signs

In the fall, the city erected “no tobogganing” signs at hills in Ancaster and Flamborough, as well as at the Greenhill and Garth Street reservoirs, reinforcing an existing bylaw banning tobogganing on city property. The renewed efforts have stirred up outrage among residents unaware of the ban, says the Spectator.

Since late last year, more than 1,000 people have signed an online petition entitled, LET US TOBOGGAN!!!, the newspaper reports.

“Believe it or not, tobogganing cases going to court against a city or town are very rare,” says Brown, partner with McLeish Orlando LLP. “Over the last 50 years, there have been less than a handful of reported decisions. In fact, the most recent case suggests very little exposure is created against a city or town when someone gets hurt tobogganing.”

Referring to De Cou v. Leamington (Municipality of), 2014 ONSC 6044, Brown says the case involved a woman who was sledding with her two boys when her sled hit something in the snow, catapulting her forward, and causing her to suffer injuries. She sued the town of Leamington, he says.

“Leamington had no ban whatsoever on tobogganing. Although the town was fully aware that their property was being used to toboggan, it did nothing to maintain the property,” says Brown. “The court held that Leamington was not liable whatsoever for the woman’s injuries.”

The dismissal of the Leamington case was not novel, says Brown.

In Scoffield v. North York (Township) Public School Board, S. No. 20, a 15-year-old girl was hurt while tobogganing with friends on a hill behind her school and sued the town for her injuries, he says. The court found no liability on North York.

Rarely successful

“There are in fact very few cases where a city has been held responsible,” says Brown. “When they are, the facts are unusual and not your typical wintertime toboggan experience.”

In the now infamous Uggenti v. Hamilton, Brown says it’s notable that the case was decided by an arbitrator and never went to trial.

“It is uncertain what the result would be if it went to trial,” he says, noting some of the facts around the case, again, were unusual. “The arbitrator found that that the city knew they had a hidden ditch on their property. Not only were they aware of this hidden danger, they expressed concern about the danger it posed to people using the hill. Despite this knowledge, they did nothing about it.”

Overall, says Brown, “If there is a war on tobogganing, it is not because of lawsuits.”