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Law 12Tort LawMs. Ripley
Cempel v. Harrison Hot Springs Hotel Ltd., [199s16 W.WR. 233 (B.C.C.A.)
One night in May 1993, 16-year-old Cassandra Cempel and her friends went camping at Harrison Hot Springs, near Chilliwack, British Columbia. It was late when they arrived, but they decided to go to the hot pool. Instead, by mistake they went to the source pool, which contained scalding hot water. The pool was obviously closed, but Cassandra started to climb over a fence that surrounded the pool. As she was climbing the fence, part of it gave way and bent over. Cassandra fell into the water, which was 60°C. She was badly burned and spent 51 days in hospital. Cassandra sued Harrison Hot Springs Hotel Ltd. for damages.
The trial court found that the fencing around the source pool was inadequate, and the hotel was in breach of its duty to take care that persons on the premises were reasonably safe. It also found the plaintiff's actions "foolhardy and imprudent," and that she was "primarily the author of her own misfortune." The court apportioned fault 75 percent to the plaintiff and 25 percent to the hotel. The plaintiff appealed on the basis that she could not have anticipated the kind of damage she suffered and that the trial court had attributed too much fault to the plaintiff and too little to the defendant.
The British Columbia Court of Appeal agreed with the trial judge as to the law, but altered the apportionment of damages. In the opinion of the Court, apportionment should be assessed on the extent of departure from the respective standards of care. The court apportioned 60 percent to the defendant and 40 percent to the plaintiff.
1.Was Cempel an invitee or a trespasser? Should this determination have any bearing on the duty of care owed and the damages awarded? Explain.
2. Do you agree that both plaintiff and defendant should share liability? Support your view.
3.Explain the significance of the altered apportionment regarding the "the extent of departure from the respective standards of care."
Crocker v. Sundance Northwest Resorts, [1988] 1. S.C.R. 1186
BACKGROUND As a promotion for its ski resort, Sundance Northwest Resorts hosted a competition in which a two-person team raced down a steep hill in an inner tube. The prize was $200. Mr. Crocker paid the $15 entrance fee and signed the entry form, without reading it. Consequently, he did not know the form contained a waiver clause.
Crocker was visibly drunk at the beginning of the first race. At the start of the second race, the owner of Sundance asked Crocker if he was in any condition to compete but did nothing to stop him. The resort manager also suggested that he not continue but took no further steps to restrict him when he insisted on competing. During the second race, Crocker suffered a serious neck injury and was rendered quadriplegic.
Crocker sued the ski resort for negligence. At trial, he was successful in his suit, but the Court applied the defence of contributory negligence. Crocker was awarded 75 percent of his damages. He appealed. The Ontario Court of Appeal overturned the trial judge's decision and found that the resort was not liable at all. Crocker appealed this decision to the Supreme Court of Canada.
LEGAL QUESTION: Did Sundance owe a duty of care to Mr. Crocker? If a duty existed, what standard of care was required and was the standard met?
DECISION The Supreme Court found that the plaintiff's injuries were "clearly foreseeable in this case,' and the resort failed to take reasonable steps to prevent Mr. Crocker from competing in the race that caused his injuries. By allowing Crocker to participate in the event, the resort breached the duty of care it owed him and was therefore liable for damages that resulted from its negligence. However, the Court did uphold the finding that Crocker was 25 percent liable due to contributory negligence.
LEGAL SIGNIFICANCE The Court ruled that when a resort organizes an event to enhance its profits, it has a duty of care to prevent a visibly intoxicated person from competing in a dangerous competition. Crocker's signing of the entry form containing the waiver did not release the resort from its duty of care because Crocker's attention had not been drawn to the waiver; in fact, he had not read it and had no idea it existed.
ANALYSIS
1.What did Mr. Crocker have to show in order to prove the resort was negligent?
2.What are three possible defences Sundance could argue in this case?
3.Why do you think Crocker appealed the trial judge's decision? How did the trial judge's decision differ from that of the Supreme Court of Canada?
4.If Crocker's intoxication had not been evident, would Sundance Resorts still have been liable for his injuries? Explain.