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March 4, 2015

No Duty on Municipality to Stop Teens from Climbing Trees

The Court of Appeal has dismissed an appeal from a trial decision which held that a municipality was not liable for a teenager who fell out of a tree and was rendered paraplegic.

In Winters v. Haldimand (County), 2015 ONCA 98 (C.A.), the 16-year-old plaintiff was "hanging out" with friends at a municipal park.  The tree from which he fell was one he and friends had climbed numerous times and was a type of willow found all over Ontario.  The evidence was that generations of teenagers had climbed the tree and there had never been a report of an injury before the plaintiff's incident, save when someone twisted an ankle getting out of the tree.  None of the park personnel who were at the park weekly observed anyone in the tree.  The plaintiff's mother had never seen anyone in the tree and was unaware her son and his friends used it.

The Court of Appeal held that there was no error in the trial judge's decision, stating:

[16]      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 Court also upheld the trial judge's decision to award costs against FLA claimants, holding that there is no general rule that no costs should be awarded against FLA claimants.

Congratulations to Sheila Handler and Brian McCall of McCall Dawson Osterberg Hanlder LLP, who were counsel at trial and on appeal.

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