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Every year when our family’s perennial garden starts blooming with the colours of spring, the perennial crop of backyard trampolines predictably pops up in our local big box and hardware stores. After long Canadian winters, parents are understandably anxious to get their kids outside again, and what better lure than a new piece of recreational equipment that is sure to attract all the neighbourhood friends?
Unfortunately, the attractiveness of recreational equipment such as trampolines and swimming pools can create insurance coverage problems for homeowners who choose to bring them onto their property. Homeowners’ insurance policies may even have restrictions or exclusions for this sort of equipment because of the liability hazards they present.
Despite the known health benefits of trampolining (in particular, cardiovascular fitness), The American Academy of Pediatrics, the Canadian Pediatric Society, the Canadian Academy of Sport and Exercise Medicine, and Alberta Health Services have all gone so far as to recommend that trampolines NOT be available for use at homes, schools or playgrounds. Regardless of these position statements, however, the sales of backyard trampolines have continued to soar, as has the popularity of indoor trampoline parks.
How can homeowners with trampolines try to protect themselves? First, make absolutely sure to advise your insurance company of the trampoline, and ensure your policy includes coverage for this particular risk. Secondly, the Canada Safety Council has provided a safety-tip sheet for backyard trampolines that is worth reviewing, and making a household commitment of strict adherence.
This may not be enough however, because of the incredibly strong lure this kind of equipment poses to young children. Even if a child does not have permission to use a homeowner’s trampoline (or has been expressly told they are NOT allowed to use it), the simple fact that one is accessible on a property can expose an owner to liability. Section 13 of Alberta’s Occupiers’ Liability Act, RSA 2000, c. O-4, for example, has a special provision that prescribes a high duty of care owed to child trespassers.
The 1985 Alberta Court of Appeal decision of Houle v. Calgary 1985 ABCA 153 (CanLII) illustrates just how onerous the duty owed to child trespassers can be. In Houle, the City of Calgary was found to be wholly liable for injuries sustained by an 8 year old boy who managed to climb over a 10 and a half foot fence surrounding an electrical power substation. The curious child apparently figured out that a cross-plank reinforcing the bottom of the fence gave him an extra 22 inches of lift when combined with a boost from his 10 year old brother. Once he cleared the fence, he came into contact with a live wire and sustained serious electrical burns which ultimately cost him his left arm, just below the elbow. The infant plaintiff was awarded $213,958 in damages (over $430,000 indexed to 2015).
In light of this high duty of care and liability risk, trampoline owners may think it clever to have friends and neighbours sign waiver forms to protect themselves from lawsuits in the event someone’s child does gets hurt. However, the 2009 Supreme Court of British Columbia case of Wong v. Lok’s Martial Arts 2009 BCSC 1385 (CanLII) found that a martial arts studio’s waiver form was unenforceable against an injured child plaintiff, even though the boy’s mother had signed it as part of his registration. Allthough this specific case is only binding on BC courts, the decision may be persuasive in other jurisdictions with similar legislation to the Infants Act RSBC 1996, c. 223. At paragraph 60 of Wong, Justice Willock explains that the Act does not permit parents to release a child’s claim for damages after the claim arises, and applied that same rationale to prohibiting a parent from waiving the child’s right to a claim before it arises. In Alberta, s. 4 of the Minor’s Property Act prescribes that settlement of a minor’s claim requires a Court Order and the approval of the Public Trustee. In order to obtain that approval, the Court must be satisfied the settlement is in the best interests of the child.
In the absence of an effective mechanism for signing away a child’s right to sue for bodily injury damages, parents may also be faced with « parental indemnity agreements » as an alternative to a waiver form. The idea behind such an agreement is that parents will agree to indemnify (essentially reimburse) a property owner for any damages paid to their child arising from injuries sustained in the designated activity. Some provinces, however, have specific legislation, such as s.4(5) of the Alberta Minors Property Act, SA 2004, c. M-18.1, that renders such agreements void. Although such an agreement has not been tested in a Canadian court, the Ontario case of Stevens v. Howitt 1969 CanLII 322 (ONSC) suggests they would not be upheld, as they appear to be contrary to public policy in favour of the protection of infants.
The decision to acquire and install a backyard trampoline is not one to be taken lightly. Given the exposure to liability for childhood injuries, it is important to consider whether or not you, as the owner, are prepared to diligently supervise and accept responsibility for the safety of all children who decide to climb on and go for a jump – whether they have your permission or not.
This is a high burden, and one that is often fumbled, as the 1994 case of 12 year old Tara Poirer illustrates. The circumstances leading up to Tara’s injuries play out in countless Canadian backyards every years: diligent early attention to supervision and enforcement of rules grows increasingly lax as time goes by. Ms. Poirer’s broken arm resulted in damages of approximately $24,000.00 in 2015 dollars. A childhood cervical spine injury has the potential to exceed the limits of many homeowners’ liability policies.
If you have a child who has been seriously injured in a trampoline accident, there may be compensation available to them, even if you signed a waiver and/or indemnity form before their injury. Should you have any questions or concerns, feel free to contact one of the lawyers in Miller Thomson’s personal injury group for a no-obligation consultation.