Ontario Court upholds liability waiver based on “forseeable” risk

The legal test for negligence which would absolve an outdoor equipment provider of liability in a personal injury case is not perfection but rather to design a product so as to eliminate any unreasonable risk of foreseeable injury, the Ontario Superior Court ruled in Enslev v. Challenges Unlimited Inc.
And although an outdoor swing designer might have foreseen operator error during the use of the product, the consequences of the operator error nevertheless could not have been predicted, the court found.
The decision upheld a waiver of liability contained in a signed contract between a Cleveland House (a Muskoka resort) and Challenges Unlimited, an outdoor equipment supplier.
Challenges Unlimited provided Cleveland House with an outdoor swing apparatus suspended by two telephone poles 47 feet tall, positioned approximately 84 feet apart. Basically, two cables, one attached to each pole, are fastened to a nylon harness in which a rider would swing from right to left, like a pendulum. An owners manual provided by Challenges Unlimited to Cleveland House noted that one cable, called a lazy line should be held away from the rider so as not to injure him or her.
Cleveland House staff members who operated the ride, however, did not follow the training manual supplied by Challenges Unlimited; they did not hold the lazy line away from Erica Enslev, who rode the apparatus in June 2001. The lazy line cut through her nylon harness, causing her to hit a platform awkwardly and sustain serious injuries.
Cleveland House paid liability and then counter-sued Challenges Unlimited to cover the damages. But Challenges Unlimited noted Cleveland House had signed a waiver of liability.
A reasonable reading of the [waiver of liability] clause by a person signing the contract would clearly indicate Challenges Unlimited was not responsible for injuries arising from any negligent use of the equipment, the judge found.
The judge upheld the waiver on the grounds that even if Challenges Unlimited might have foreseen operator error, it could not have foreseen the result would be that the lazy line might cut through the nylon harness like a dull saw.