The Court of Appeal recently considered a municipality’s exposure to liability for accidents involving trees in parks. On September 28, 2011 the plaintiff Eric Winters fell from a tree and was tragically rendered paraplegic at the age of 16. The tree was a swamp willow located in a municipal park in Cayuga, Ontario. This type of tree typically grows along river banks all over Ontario. It had multiple large limbs growing at or near its base. The tree was known by the plaintiff and some of his friends as “the Chilling Tree” and had been used for many years by teenagers to congregate, climb, or sit on.

The plaintiff commenced an action against the municipality alleging that it failed to meet its obligations under section 3(1) of the Occupiers’Liability Act which requires an occupier to take reasonable care to see that persons entering a premises are reasonably safe.

At trial the court held that the municipality met its obligations under the Occupiers Liability Act. The court found that the municipality’s practice of being at the park at least weekly during business hours constituted reasonable monitoring of the park, particularly as there were no prior complaints about the tree and no municipal witness had ever previously seen anyone climbing it. Further, although the tree was attractive to climb, with a large horizontal limb eight feet above the ground, the court held that it was no more unreasonable for the municipality to leave the tree as it was than it was to leave any other horizontal surface from which someone could fall. As such, it would not be reasonable to require the municipality to trim the tree or remove it entirely. Finally, in dismissing the action, the court noted that municipalities do not have limitless resources and should not be obliged to forbid all activities which, with hindsight, might prove to be dangerous.

The Court of Appeal upheld the trial court’s decision. The Court of Appeal agreed with the trial judge’s conclusion that the monitoring of the park was reasonable in all of the circumstances, and particularly so in the absence of any expert evidence to the effect that the municipality fell below the standard of care to be expected of a town similar to Cayuga. The Court of Appeal went on to state: “Any danger posed by this tree was an obvious one. If you chose to climb it you could fall and be injured. There is neither duty to warn of such an obvious and self- evident danger nor any duty to monitor beyond what the Township [was] doing at the time of this most unfortunate accident”.