In DeWaard v. Capture the Flag Indoor Limited, a man sued a laser tag facility after he was injured while playing there with a group of friends. The facts of the case are as follows. When the group of friends arrived at the facility, staff advised them on the rules, including the fact that running and climbing on walls is prohibited. The friends were required to sign a waiver of sorts, but the waiver that the plaintiff, Mr. DeWaard, signed was not produced as evidence at the trial.
Laser tag is played in the dark and involves teams of opposing players using laser guns to shoot at the opposing team players. The defendant's laser tag venue included multiple levels and towers accessed by ramps, as well as corridors and obstacles behind which participants can hide. There was an 'island' on one of the towers, which contained a hole through which participants could shoot at opponents on the lower level. The day before the plaintiff’s accident, a participant had fallen through the hole, and the manager of the venue allegedly instructed an employee to erect a sign over the hole telling players to stay off the island. The hole was also covered, partially or totally, with some form of particle board, seemingly not of strong construction.
The plaintiff testified that when he stepped onto the ‘island’, the wood that covered the hole broke, causing him to fall through the hole to the floor below. The plaintiff landed on his right foot, resulting in a Lisfranc fracture which required surgery and caused him ongoing foot pain. His injury also led to post-traumatic osteoarthritis in his mid-foot, which impacts the plaintiff’s ability level and will likely limit his future ability to work in his capacity as an electrician.
Under the Occupiers’ Liability Act, the occupier of a premises owes a duty of care to everyone coming onto their property, and must take reasonable care to ensure that visitors are reasonably safe while using the premises. An occupier may be the owner, a tenant, or anyone responsible for the activities on a property. The Act does not absolve visitors from taking reasonable care for their own safety; however, there is an implicit duty on every occupier to make their premises reasonably safe. Occupiers can be found negligent if there was a foreseeable risk to visitors who acted with ordinary diligence, but may also be held negligent even if the injured person did not exercise ordinary care for their own safety. Essentially, an occupier must protect reasonably careful visitors from foreseeable harm, but should also seek to protect visitors who may be careless or contributorily negligent.
Opposing arguments and the judge's findings
Testimony at the trial revealed that no one remembered seeing a sign warning people of the hole, and the judge deemed that it was unlikely that the sign, if present, was clearly visible to the participants (particularly in the dark). The judge concluded that the covered hole was a hidden hazard and further, it was reasonably foreseeable that it would present a risk to laser tag participants who exercised ordinary care for their own safety. It should also have been reasonably foreseeable to facility staff that someone would climb on a wall, regardless whether this behaviour is contrary to the rules.
The defendant argued that Mr. DeWaard failed to exercise ordinary diligence with respect to his own safety and also, that he accepted the risks because, at the time of the accident, he was climbing onto the island and consequently in violation of the rules. The judge disagreed, finding that the plaintiff had no reason to expect the island wall to contain a concealed hole and did not willingly assume the risk of falling through a hole in the floor. Therefore, the occupier is not absolved of responsibility for the plaintiff’s injury on the basis that there were risks willingly accepted by the visitor. Accordingly, the judge concluded that the laser tag facility was negligent in its duty to take reasonable care to make certain that laser tag participants would be reasonably safe, and this failure was the prevailing cause of Mr. DeWaard’s accident and resulting injuries.
However, because the plaintiff’s actions in climbing were irresponsible and contrary to the facility’s rules, Mr. DeWaard was found 25 percent responsible and negligent for his own injuries. The laser tag venue was found 75 percent negligent, on the basis that the placement of a board over the island hole constituted a concealed hazard, the primary cause of the plaintiff’s fall.
In assessing the plaintiff’s losses (and corresponding damages), the trial judge considered opinions of various medical experts, including those of an orthopaedic surgeon, who indicated that a fractured dislocation of the Lisfranc articulaton is a significant foot injury and known to have a prolonged recovery time, including a high risk of ongoing problems and pain. Medical experts testified that the plaintiff is likely to suffer increased pain, swelling and stiffness in the long-term, and may require further surgical intervention. Prior to the accident, Mr. DeWaard was a physically fit and active young man, enrolled in an electrician apprentice program. After the incident, he was in considerable pain and underwent surgery, which involved using wires to pull the bones in his foot back together and pins were also installed in his foot. He subsequently wore a plaster cast, then used crutches for almost five months.
Mr. DeWaard was initially unable to work for nine months, then attempted to work again but acute pain and difficulty putting weight on his foot forced him to take more time off, during which time he received disability benefits for three months. He eventually returned to work, but his quality of life generally diminished as he could no longer run, play court games, hike long distances in back country, and participate in many of the sports that he previously enjoyed. The plaintiff reported that he is also less able to do renovation work and make extra money outside his regular employment.
The defendants argued that the plaintiff has been able to return to his regular job as an electrician and he even often works overtime. The defendants also pointed to the plaintiff’s Facebook profile, which shows that he purchased a $2000 mountain bike and frequently goes mountain biking. A photo was posted depicting Mr. DeWaard carrying his bike down a rocky creek bed. His Facebook posts also reveal that he has been active in creek fishing, renovating, rollerblading, camping and many other activates, and one photo shows the plaintiff walking on scree. The defendants argued that his Facebook profile is inconsistent with his reported inability to participate in many activities and his alleged pain level.
The judge’s overall assessment was that, although the plaintiff is able to maintain a somewhat active life style, he is less active than before the accident and can no longer participate in some activities he previously enjoyed. The judge found Mr. DeWaard’s testimony reporting his ongoing pain to be credible and supported by the medical evidence. Although there were some inconsistencies in the plaintiff’s Facebook profile, in terms of reflecting a positive perspective on his abilities and interests, the judge allowed that these reports were likely intended to place a positive perspective on his abilities and interests and puffed up his lifestyle and abilities. The judge also believed that the plaintiff’s condition will likely worsen over time and he will no longer be able to work as an electrician, nor is he likely to be capable of working the same amount of overtime. He may also be forced to return to school for retraining, and is expected to retire early.
The judge assessed total damages for the plaintiff at over $490,000. His awarded damages are reduced by 25 percent for contributory negligence. This amount included:
- $50,000 in general damages (for pain and suffering),
- $52,600 for past loss of income,
- $300,000 for future loss of income/earning capacity,
- $82,341 for future care costs
- $2,000 for past housekeeping losses
- $3,180.85 for special damages