City held liable for injury on private property: Lessons for owners of public facilities

Authors: Sharon Au, Catrina Thompson

Cities may be held liable for injuries to residents even when those injuries occur on private property, as highlighted by a recent decision from the British Columbia Court of Appeal.

The Court of Appeal recently affirmed a lower court ruling in Revelstoke (City) v. Gelowitz, 2023 BCCA 139  holding the City of Revelstoke liable for injuries sustained by a plaintiff who was rendered quadriplegic after making a shallow dive into a lake.

The plaintiff made his dive from private land owned by a third party. However, the plaintiff accessed the land as part of a swim that began at the Williamson Lake Park and Campground, a pay-for-use park owned by the City.

The City argued that it did not owe the plaintiff a duty of care because the dive occurred on private land. The trial judge rejected this argument, finding that the City had a duty to warn of risks known to the City arising from the use of its facilities. Because the City invited members of the public into its lakefront park and was aware of the risks posed by diving into the water, it was liable for failing to warn of the danger of diving from lands not owned by the City.

Court of Appeal’s decision

The British Columbia Court of Appeal confirmed the City owed a duty of care to the public but differed from the trial judge on applying the Anns/Coopers test.

The Court of Appeal agreed that the evidence provided in the case supported a finding that the City was aware of the risks associated with diving into the lake. However, an invitation to use the lakefront park from the City alone was insufficient to establish the creation and control of a risk. The key question was whether the parties were “in such a ‘close and direct’ relationship that it would be ‘just and fair having regard to that relationship to impose a duty of care in law upon the defendant.’”

Unlike the trial judge, the Court of Appeal found that the location of where the plaintiff dived was a key fact that would determine whether there was sufficient proximity in this case to create a duty of care. There was evidence that the City knew lake users routinely swam or canoed across the lake from the City park to the shore where the plaintiff was injured. It was reasonably foreseeable in this unique set of facts that the City’s failure to warn park users of the risks of diving in that area could result in the plaintiff’s injuries.

The Court of Appeal rejected the residual policy arguments that imposing a duty of care in this case would create indeterminate liability and would be too broad to be sustainable. The Court of Appeal expressed that “this case does not establish a precedent that would ground liability on owners of waterfront properties for injuries suffered by invitees at locations that are remote from the location of known risks associated with the use of the waterfront on the owner’s own property.”

The Court of Appeal’s decision underscores the importance of properly warning invitees of the risks associated with using park facilities, even in certain cases where the land is not owned by the city. Owners and operators of public facilities should take note of this decision and ensure that they are taking reasonable steps to identify and warn of known potential risks associated with their facilities, even if those risks may not arise from their property. To learn more, contact our Municipal practice group.

This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.