When is a hazard so obvious that there is no duty to warn?
The Appellant (Plaintiff) was 16 years old when on the morning of September 27, 2001, he fell from a tree and was rendered a paraplegic as the result. The tree from which he fell was one which he and many others had climbed countless times without incident. The evidence was that the tree was a willow of the sort that typically grows along river banks and elsewhere all over Ontario. At trial, his counsel argued that the limb he fell from was “inherently dangerous”, and that the county had breached its duty to warn under section 3(1) of the Occupiers’ Liability Act, which states:
3.(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering onto the premises and the property brought on the premises by those persons are reasonably safe while on the premises.
The trial judge held:
In any event, there is no evidence which suggests anything inherently dangerous about the ‘Chilling Tree’ beyond the trunk or limb in question. Trees, being, by their very nature, things which can be climbed, and therefore fallen from, are potentially harmful.
On appeal, the Court of Appeal held:
Any danger posed by this tree was an obvious one. If you chose to climb it you could fall and be injured. There is no duty to warn of such an obvious and self-evident danger nor any duty to monitor beyond what the Township is doing at the time of this most unfortunate accident.
The appeal is dismissed.
Note: At trial, the court awarded $75,000.00 in costs against the Plaintiff, and $5,000.00 was awarded against each of the six Family Law Act plaintiffs. Their loss on appeal resulted in an award of another $12,500.00 in costs against the Plaintiff, plus $500.00 for each of the Family Law Act plaintiffs.
Also note: At trial, the Plaintiff made a Rule 49 offer of $749,000.00 plus costs. The Defendants made an offer to go out without costs. In the result, the trial judge held:
…as was recognized by McCarthy, J.A. in S & A Strasser Ltd. v. Richmond Hill (Town), reported at 1990 CanLII 6856 (ON CA), [1990] O.J. No. 2321 and cited by P. Lauwers, J. in Greenhalgh v. Duoro-Dumm (Township), reported at [2011] O.J. No. 1657, Rule 49.10 has no application where the plaintiff is totally unsuccessful. In that circumstance, the defendants are notionally entitled to costs throughout the action, i.e. not just after the making of their offer to settle.
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