…Summer, summer, summertime. Time to sit back and unwind.  Summer, summer, summertime. Time to sit back and unwind …The temperature’s about 88. Hop in the water plug just for old time’s sake. Break to ya crib, change your clothes once more. ‘Cause your invited to a BBQ that’s startin’ at 4…”  DJ Jazzy Jeff and the Fresh-Prince (1991) “ Summertime” By R.K Bell, R.N. Bell, G. Brown, R. Mickens, L.H. Mahone, C. Simpkins, J.A. Townes, W. Smith, C. Smith, A. Taylor, D. Thomas and R. Westfield.  Homebase [Record], Chicago, IL: Jive Records, RCA.

Unlike the working-class West Philadelphia neighbourhoods of the late 70s and early 80s referenced in this song, today’s Ontario youth don’t need to “hop in the water plug”, that is take a wrench and illegally remove the plug on the fire hydrant so they can cool off from the summer heat. Whether you live in Kingston or Kitchener there’s something to suit every budget. You can either go low cost and swim at the local pool or drop a bundle at a place like Canada’s Wonderland in Vaughn or Great Wolf Lodge in Niagara Falls.

Ontario opened up its first waterpark in 1971. Known as “Soak City” it remains a part of Ontario Place, a waterfront amusement park and exhibition center located in Toronto and owned and operated by the Ontario Government. There are currently 19 waterparks being run in Ontario, including Calypso: Canada’s largest outdoor waterpark located in Limoges.  According to owner Guy Drouin, the park boasts 400, 000 visitors annually, is regularly inspected and all 600 of its staff are properly trained and aware of the facility’s safety policy and procedures. Calypso is a 100-acre facility with a wave pool that [according to its website] is over an acre wide and can accommodate up to 2,000 swimmers at a time. It has 35 waterslides and over 100 water games or water-based forms of amusement at your disposal. It also boasts a Hawaiian Beach Bar, aquatic zoo and [as of last month] 3 new lawsuits it can add to the others it currently faces. Sure, waterparks can be a fabulous way to beat the summer heat with family and friends, but what happens when things go wrong and someone gets hurt, like they did at Calypso? Who is responsible for that? The victim, the waterpark or the staff they employ? The following discussion looks at which party is to blame, the liability of privately owned as opposed to publicly-funded Ontario waterparks, and their duty of care.

In order to prove a waterpark owner was negligent, plaintiffs must show four things: a prima facie duty of  care was owed to them, that the applicable standard of care was breached by the defendant’s actions, the damage or loss resulting from that breach and if the damage  or loss was  foreseeable in their case.

Consequently, victims can file for negligence against the waterpark via statute or common law. Statute-wise, visitors have grounds to sue if they prove the waterpark owner breached the Technical Standards and Safety Act, 2000 and/or the Occupier’s Liability Act, 1990. In Ontario, the Technical Standards & Safety Authority (TSSA) regulates and inspects the rides and slides at amusement parks and waterparks operating in the province. The TSSA is a non-profit provincial organization mandated to provide public safety services in its role as the Delegated Administrative Authority of the Technical Standards and Safety Act and its applicable regulations. If the TSSA finds a ride or slide is unsafe and is in violation of the Act, they can order it be dismantled and removed and [depending on the nature and gravity of the safety code violation] can advise the Ontario Government to charge the proprietor of that amusement park or waterpark accordingly.

Injured parties can also sue under the Occupier’s Liability Act. Tort law covers four types of ‘visitors’ or ‘entrants’ and requires different levels of proof for each as: trespassers, licensees, invitees or contractual entrants. In this situation, waterpark owners are considered ‘occupiers’ and their paying customers are considered ‘contractual entrants’. Under torts, a ‘contractual entrant’ is a person who entered into a contract to use the premises, as opposed to someone who receives a particular good or service (e.g. a hotel guest, but not a restaurant patron). The reasonable standard of care owed a ‘contractual entrant’ is to ensure that the premises are fit for the intended purpose. As previously explained in our discussion on the liability of summer camps, [see “Not Such Happy Campers: the Tort Liability of Ontario’s Summer Camps”, July 28, 2014], a case can be made for a statutory breach of the Act, especially if it involves facility safety. Low rent risk management which cuts corners when it comes to the facility’s safety, staffing or training procedures can provide fertile ground for a lawsuit. As per section 3 of the Act (1) “ an occupier of premises  owes a duty to take such care as in all circumstances of the case is reasonable to see that the persons entering on the premises , and property brought on the premises by those persons are reasonably safe while on the premises.” Subsection (2) of the Act is also relevant here in that it specifies that “the duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises [italics mine] or [italics mine] by an activity carried on the premises.” The law establishes a basic duty of care which occupiers must meet for visitors on their property. Under the Act, a person injured while on the property of another may be able to sue the occupier for damages.

Liability is established by proving there’s been a breach in the prima facie duty of care set out in the statute. That prima facie duty of care is a function of the ‘special relationship’ that exists between businesses and their customers, as per the ‘proximity test’ applied by the Supreme Court of Canada in Childs v. Desormeaux [2006] 1 S.C.R. 643, 2006 S.C.C. 18. The next step is the ‘objective test of reasonableness’ or what the reasonable ‘standard of care’ is for contractual entrants as per the criteria set down in Waldick v. Malcolm (1991), 83 D.L.R. (4th) 114 (S.C.C.). Finally, if that ‘standard of care’ was breached, was the injury or loss that ensued foreseeable or was the damage too remote to foresee as per the precedent set in Cooper that was re-examined in  Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27. If counsel can prove ‘proximity’, ‘duty of care’, a breach in the applicable ‘standard of care’ owed and that the resulting harm was ‘foreseeable’, then [depending on the nature and gravity of the plaintiff’s injury] the waterpark owner may be liable for general, special,  or even punitive damages.

Undoubtedly, waterparks are a great way to spend time with friends and family during the hot summer months. More often than not, they deliver on the promise of fun in the sun and happy memories, except for the hundreds of Ontarians that get hurt every year. While most injuries involve waterslide malfunctions, it’s also common for visitors to slip and fall on slippery grounds or walkways. Other dangerously negligent conditions include: broken or poorly maintained guard rails, ride equipment failure, safety belt or harness failure, unsafe waters, lack of warning signs about the dangers associated with a particular slide, ride or activity and unreliable supervision and surveillance on the part of ride operators and lifeguards. When the harm that’s befallen a victim is the result of a breach in the safety standards of the facility, they may be entitled to compensation. In order to obtain it, the plaintiff will have to prove the park and/or staff is liable for the injury they suffered.

In order to limit their liability, the proprietors of these facilities rely on certain measures to minimise their involvement in potential personal injury suits. The first one is proper signage. The majority of waterparks have sizable warning signs posted at the entrance of their establishments. These signs generally explain the dangers of certain park activities and include descriptions or an illustration of behaviour that can lead to injury. Once in the park, you normally see more signage indicating age or height requirements for certain rides or slides and their maximum capacity, as well as tips on the safest way to enjoy them. Of course, there are the familiar “no diving” signs in the shallow end of the pool and “no running” signs you see at any municipal pool so visitors [especially kids] don’t faceplant into the cement walkway or into someone else as they rush out of the wave pool after a fun slide down.

The second measure waterparks use to restrict their responsibility for injury is through waivers of liability. As explained in last week’s review on the duty of care of cruise ships [see “The Liability of Love Boats: the Duty of Care of Cruise Ships”, August 4, 2014], these documents primarily favour the owner and not the customer and can contain terms and conditions that are legally binding that can impact a victim’s rights and entitlements. Although most of these waivers don’t rival the complexity or validity of the cruise ticket contracts, some come close. Great Wolf Lodge is the case in point. The “terms and conditions” document users must agree to in order to use their website clocks in at 10 pages and covers everything from user conduct to third party content and has an extra half page at the end just on the “ limitation of liability.” Conversely, the actual waiver or “general assumption and release of liability” form itself is shockingly brief, but the wording packs quite a legal punch. Arguably, line 2 which states the  park visitor understands their being exposed to a variety of hazards and risk “foreseen or unforeseen” is meant to reference the case precedent surrounding the duty of care of resorts, their waivers of liability and the issue of ‘foreseeability’ examined in Crocker v. Sundance Northwest Resorts Ltd. (1988), 51 D.L.R. (4th) 321 (S.C.C.). Paragraph 2 certainly doesn’t mince any words and enjoins the signatory of this document to agree to [in large capital letters] “WAIVE, DISCHARGE CLAIMS, HOLD HARMLESS AND RELEASE FROM LIABILITY Great Wolf Resorts Inc.; Great Lake Services, LLC and their affiliated companies; their officers, directors, employees, agents and leaders from any and all liability on account of, and in any way, even [italics mine] if caused by negligence of Great Wolf.”

Now volenti is a standard defence for occupiers who seek to limit their responsibility for injury or loss and if Great Wolf Lodge’s release form isn’t the perfect example of the doctrine in action than I don’t know what is. Basically, if the establishment can show that the harm or loss suffered by the visitor came as a result of “risks willingly assumed”, they may be able to protect themselves from liability or show the contributory negligence of the victims suing them.

Indeed, there are cases where the injured party does not prove negligence, but rather contributory negligence. As per the criteria set out by the Supreme Court of Canada in Bow Valley Jusky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (1997), 153 D.L.R. (4th) 385 (S.C.C.) “ where a man is part author of his own injury, he cannot call on the other party to compensate him in full.”

Plaintiffs have a ‘duty to mitigate’, which is premised on the notion that the injured party cannot recover from the defendant damages which they themselves could have avoided by taking ‘reasonable steps’.

However, the true test of such criteria is its application to litigation, like the kind currently surrounding Calypso, for example. The Calypso Theme Waterpark opened June 7th, 2010 and within a month or so of opening day it already had wracked up a lawsuit. If you include the latest report from CBC News last month [see “Calypso water park facing 3 new lawsuits alleging unsafe environment”, posted Jul 08, 2014 6:01 AM ET Last updated: Jul 08, 2014 7:21 PM ET] Calypso Theme Waterpark now faces a total of 9 personal injury suits for injuries sustained by visitors between 2010 and 2012.

Needless to say, the volume and severity of the injuries suffered by victims did not go unnoticed by the TSSA. On July 16, 2013 they filed 20 charges against Calypso under section 37 of the Technical Standards and Safety Act regarding incidents that occurred between 2011 and 2012. The charges include:  not reporting incidents, not having properly trained staff, and not having equipment that was properly designed to ensure safety, to name but few. Some of the violations were directly connected to the safety of 3 water rides: the Pirate’s Aquaplay , the Orange Bobsleigh and  finally the Steamer, which is involved in 14 of the 20 violations Calypso is being prosecuted for.

Penalties for the TSSA charges range from fines of up to $1 million to jail time. But, that’s does little for victims and their families who must bear the immediate physical, emotional and financial costs of the waterpark’s negligence every day. In Joshua Proulx’s case, the harm he suffered at the hands of 2 drunken Calypso patrons was so grievous, it left him with permanent nerve damage and disfigurement, unable to continue with his education and [therefore] unable to fully participate in the workforce, least for the foreseeable future. Proulx is seeking $500, 000 for general and special damages due to pain, suffering, disfigurement, loss of future income and enjoyment of life. His parents and sister are also each seeking $75, 000, which includes compensation for time off work and out of pocket expenses incurred to care for him. Proulx’s counsel alleges Calypso’s staff displayed negligence when they over served alcohol to the defendants Benoît and Charles Laferrière or by failing to stop the defendants from consuming their own alcohol on park grounds in violation of the park’s policy. Whether the court finds the park was negligent for one or both reasons, it could be a while before the Proulx family sees a dime of the $725, 000 they’re seeking in compensation. Their statement of claim was filed June 25th, 2013 and their claim remains in litigation.

The Strelec family’s negligence suit has also yet to be resolved. On June, 19, 2012, Marek Strelec, his wife and their two children rode a four-person sliding inflated inner tube down the

28- metre Orange Bobsleigh slide. They got stuck three times during the ride. The last time they got stuck was at the end of the slide and another tube ended up ramming into them. Mr. Strelec was thrown several feet above the side of the slide, landing on his back on the pavement.

Mrs. Strelec and her children were also thrown from their tube and were also injured. Mr. Strelec was lying inert on the pavement with blood pooling around his head while poorly trained park staff were slow to call 911 or provide much needed first-aid. As per the statement of claim filed in September of 2012, the Strelec family is suing Calypso for $1.325 million for their injuries:$1 million for Marek Strelec; $100,000 for his wife Adriana and $75,000 for each child under the Family Law Act. Mr. Strelec suffered a fractured skull, a fractured tail bone, hearing impairment, loss of balance and a possible fracture to his left heel and alleges his daughter suffered a traumatic brain injury when she was thrown from the inner tube onto the pavement.

You would think that an organization facing numerous personal injury suits would adopt a more conciliatory tone with the press and or the public. But, that hasn’t been the case with Calypso. Just last month its counsel Lawrence Greenspon stated rather combatively that [Calypso] is “going to be defending these lawsuits quite vigorously.” Apparently, the TSSA is equally undeterred. Calypso Theme Waterpark is going to trial for its 20 safety violations this September and Ontario’s safety watch dog [according to TSSA spokesperson Wilson Lee] plans to “enforce those regulations aggressively because these are meant to protect Ontarians and the public.”

Waterparks can provide visitors with a wonderful experience and are a pleasant way to make the most of  Ontario’s limited warm summer weather. But when a day with the kids at say Barrie’s Splash Canyon or  Hamilton’s Wild Waterworks ends in disaster like it did for the Strelec family: whose to blame and who can you turn to for justice or redress? An experienced personal injury lawyer will gladly answer questions like these and has the training and expertise to handle the challenges a waiver of liability may offer. Scrapes and bruises from a tumble down the water slide is one thing, severe damage is another. Trust your counsel to know the difference and to seek the correct compensation you and your family are entitled to.