When we go camping or spend time at a lake, we usually assume the area is safe for swimming and diving. However, accidents can and do happen, and they can have devastating consequences. This was the case in Revelstoke (City) v. Gelowitz, 2023 BCCA 139 where Aaron Gelowitz, suffered catastrophic injuries after diving into Williamson Lake near Revelstoke, BC, in 2015.

At the time of the accident, Gelowitz and his family were camping at the Williamson Lake Park and Campground, which is situated on land owned by the defendant City of Revelstoke on the west side of the lake. The park was operated by a contractor pursuant to an agreement with the City, and it was the City's responsibility to place safety signage along the waterfront.

The land on the eastern shore from which Gelowitz dived was owned by a private company, Revelstoke Alpine Village Inc., and was rural, forested, vacant, and undeveloped. Alpine Village was originally a defendant in the action, but shortly before the start of the trial, Alpine settled.

The trial proceeded on liability alone. Gelowitz claimed the City was negligent in failing to post adequate warnings to users of the lake advising not to dive into the lake given the dangers of underwater hazards. The City argued it did not owe a duty of care to Gelowitz to warn him not to dive off land that was not owned by the City. In any event, the City asserted it met its standard of care by installing appropriate "no diving" and "swim at your own risk" signs along the lakefront.

The City also asserted Alpine owed a duty to Gelowitz under s. 3(1) of the Occupiers’ Liability Act to take reasonable care to ensure Gelowitz was reasonably safe while on Alpine’s property. However, pursuant to s. 3(3)(a) and (b) of the OLA, the Court held Alpine was not liable for the accident because the subject lands were rural, undeveloped, forested, and vacant.

The City argued if it is found liable, only 5% of the fault should be apportioned to the City, with the remainder apportioned to Gelowitz.

Gelowitz's claim was not brought pursuant to the OLA, but rather in common law negligence. Gelowitz asserted the City, as the owner of the park, owed a duty of care to park users to warn of hazards associated with the use of the park facilities, including hazards associated with water activities in the lake.

The City argued the actual injury suffered by Gelowitz was not a reasonably foreseeable consequence of any breach of the City's standard of care. The City argued it had no duty to warn against Gelowitz's dive from land the City did not own. In other words, the City claimed that Gelowitz's loss was too remote from any wrongdoing by the City to be recoverable.

The City raised two policy considerations to negate any duty of care: (1) imposing a duty of care on the City to warn of hazards on property it does not own would create indeterminate liability; and (2) such a duty would expand the scope of liability faced by property owners.

The trial judge found the City's facilities at the lake encouraged invitees to use the lake for activities such as swimming, and the City was aware of the invitees diving off land accessed from the Park. Therefore, the City was obligated to warn invitees about the risks of diving. The judge apportioned 65% liability to Gelowitz and 35% liability to the City.

The City appealed, contending the trial judge erred in finding the City owed Gelowitz a duty of care in circumstances where the accident occurred on land it neither owned nor controlled. The Court of Appeal agreed with the City that the trial judge erred in concluding the location of Gelowitz's dive was not relevant to the existence of a duty of care. However, the Court then went on to find the City did owe a duty of care and the trial judge's apportionment of liability was reasonable.

The Court of Appeal dismissed the appeal and found the City liable under the common law of negligence and held the City had known of the risks associated with the use of the Park facility. This, in turn, raised a duty to warn of the risks of diving in the area extending from the Park foreshore to the areas that were known by the City to be accessed by Park Users. The Court found that “but for” the failure to warn, Gelowitz would not have dove from the eastern shore of the Lake. It was also reasonably foreseeable to the City that Park users might dive into the Lake from locations on the eastern shore after swimming across the Lake. Consequently, the actual injury suffered by Gelowitz in diving from the eastern shore was a foreseeable consequence of the City's breach of the standard of care in failing to have visible signs warning against diving at the point Gelowitz entered the Lake.

A similar decision may be reached in Alberta on the basis of common law negligence. Although s.530(1) of the Municipality Government Act excludes liability for a municipality if the damage was caused by a failure in the system of inspection, the issue in Gelowitz dealt with the existence of the City’s knowledge of a known hazard connected to its use of the facilities and its failure to take any steps to warn Park attendees of the hazards.

In Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125, the Alberta Court of Appeal said there is common law duty of care in occupiers’ liability claims. There is only a statutory duty of care from the Alberta Occupiers’ Liability Act.   A court in Alberta may use the Gelowitz case to find that failing to reasonably warn visitors of hazards may breach the statutory duty of care in the Occupiers’ Liability Act. 

As seen in Gelowitz, liability can be found against a municipality for failing to warn visitors to neighbouring, unowned lands, if hazards are known to exist on those neighbouring lands and harm is foreseeable. Municipalities have a responsibility to ensure their facilities and neighbouring unoccupied lands are safe for use. There is a duty to warn individuals of potential hazards connected to the use of their facilities, even if they stem from factors outside of the municipality’s control.

While it is important for individuals to be aware of potential hazards and to take necessary precautions when engaging in recreational activities, the same is true for municipalities. It is essential to take proactive steps to protect visitors from harm that may occur in their owned areas or neighbouring areas accessible by municipal lands. Posting warning signs in areas known to present a danger or hazard can be a simple yet effective measure to ensure the safety of visitors, discharge statutory and common law duties, and protect municipalities from liability. By regularly inspecting and maintaining their property, addressing potentially known risks, and taking steps to warn visitors of those risks, municipalities can create a safer environment. Taking these steps can mitigate legal risks.

Questions? 

Should you have any questions with respect to this bulletin, or if you would like more detailed information related to this case analysis, please contact Hassan Khan at hkhan@brownleelaw.com.