CITATION: Legacy et al. v. Thunder Bay (Corporation) et al., 2018 ONSC 0758 COURT FILE NO.: CV DATE:

CITATION: Legacy et al. v. Thunder Bay (Corporation et al., 2018 ONSC 0758 COURT FILE NO.: CV-17-0040 DATE: 2018-01-31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: LORRINDA MAUREENA ANNE LEGACY, KYLIE LESLIE DICKSON and MYLAH KATHERINE DICKSON, both minors under the age of eighteen, by their Litigation Guardian LORRINDA MAUREENA ANNE LEGACY Plaintiffs - and - THE CORPORATION OF THE CITY OF THUNDER BAY, RPK BASEBALL, LLC aka DULUTH HUSKIES and SUPERIOR BASEBALL CLUB, INC. aka THUNDER BAY BORDER CATS Defendants C. Hacio, for the Plaintiffs D. Latta, for the Defendant, The Corporation of the City of Thunder Bay D. Treilhard, for the Defendant Duluth Huskies HEARD: December 13, 2017, at Thunder Bay, Ontario 2018 ONSC 758 (CanLII Decision On Motion Overview [1] The Duluth Huskies, a baseball team, moves for summary judgment dismissing this action. The thrust of the argument on behalf of the Duluth Huskies is that a visiting baseball team cannot ever be held liable for any injury or damage arising from a baseball being hit out of

Legacy et al. v. Thunder Bay (Corporation et al. - 2 - the home team s stadium. Counsel for the Duluth Huskies submits that it is not negligent for a baseball player to hit a homerun. [2] Counsel for the plaintiff argues that it is premature to bring this motion. Pleadings are not closed. Neither the City, which owns the Port Arthur Stadium, nor the home team, the Thunder Bay Border Cats ( Border Cats, have delivered statements of defence. Counsel for the plaintiff argues that some facts suggest that, in unique circumstances, the visiting team could be held liable. 2018 ONSC 758 (CanLII The Facts [3] Port Arthur Stadium is flanked by roads on all sides with High Street to the east. High Street is perpendicular to the third base line. About 10 metres from the outfield fence on the High Street side there is protective netting. The netting is approximately 8 metres in height at that location. Immediately adjacent to the netting is a pedestrian sidewalk, then a narrow boulevard and then High Street. [4] Ms. Legacy deposed that she was driving northbound on High Street when her driver s side window shattered as she drove past the Port Arthur Stadium. She said that she felt an object hit her head and, when she pulled her vehicle over, she discovered a baseball on the floor of her vehicle. She further deposed that Mr. Jorgensen, the manager of the Border Cats, attended and spoke to her and offered assistance. She deposed that Mr. Jorgensen said that he was surprised that a player could hit the ball so far and he said that it was the first time that the ball had travelled towards the road. She took photographs of the stadium and the protective netting following the incident. The photographs show large holes or gaps in the netting.

Legacy et al. v. Thunder Bay (Corporation et al. - 3 - [5] An expert report that was filed indicated that Ms. Legacy s vehicle was approximately in line with the third base line when it was struck by the baseball. The expert report contains photographs showing large holes in the netting at about 3 metres and 5 metres height. Ms. Legacy s vehicle would have been about 8 metres from the netting when struck. [6] The hitting coach for the Duluth Huskies deposed that the Duluth Huskies were engaged in batting practice and that he was pitching. He deposed that a number baseballs were hit out of the stadium during batting practice by different players, which is normal. 2018 ONSC 758 (CanLII [7] In the expert report filed by the plaintiff, the expert makes a number of untested assumptions regarding exit angles and baseball impact velocity and opined that the baseball could not have originated from around home plate and that if the ball traveled 96 metres, the batter was located about 24 metres east of home plate which is near the area of third base. Procedural Issues [8] Counsel for the plaintiff learned in May 2017 that there was a licence agreement between Mr. Jorgensen and 2208811 Ontario Inc. (the Border Cats and notified all counsel by correspondence dated June 8, 2017 that he would be amending the statement of claim. Counsel for the Duluth Huskies insisted that the plaintiff deliver an affidavit of documents and served the motion record for summary judgment on July 31, 2017. The motion was returnable on November 30, 2017 but was adjourned over the objections of counsel for the Duluth Huskies. The same day I made an order allowing the amendment of the statement of claim.

Legacy et al. v. Thunder Bay (Corporation et al. - 4 - The Pleadings [9] At paragraph 15 of the amended statement of claim the plaintiff states (the underlined portions are as a result of the amendment: 15. The Plaintiffs further claim that the aforementioned incident and resulting damages and injuries were caused solely as a result of the negligence of the Defendants Huskies, Jorgenson and/or Company, or in conjunction with the acts of the Defendant City, the particulars of which consist of the following acts or omissions, or the cumulative effect of any combination thereof: 2018 ONSC 758 (CanLII (a (b (c (d (e (f (g They failed to exercise reasonable care by hitting a baseball out of the Port Arthur Stadium on to a public roadway knowing that doing so could harm members of the public; They allowed members of their teams to act in a reckless and careless manner which resulted in creating an imminent peril for Lorrinda; They knew, or should have known, that the screening or netting around the perimeter of the Port Arthur Stadium was deficient, damaged and/or inadequate to protect members of the public from baseballs hit at or over it; They failed to ensure that the screening or netting that was in place was in a good state of repair along the side of the Port Arthur Stadium adjacent to a busy public roadway; They failed to take any reasonable, necessary or adequate measures to inspect, maintain and/or repair the condition of the screening or netting in question; They failed to take steps to notify the public when they knew, or should have known, that use of the roadway adjacent to the Port Arthur Stadium was dangerous and that there was a risk that members of the public could be struck by a baseball while driving by the Stadium; They failed to post signs along High Street, warning drivers of the risk of flying baseballs;

Legacy et al. v. Thunder Bay (Corporation et al. - 5 - (h They owed a duty of reasonable care to guard against any dangerous conditions or activities being carried on at the Port Arthur Stadium that could harm members of the general public; (i (j (k (l They had a general duty to exercise reasonable care for the safety of the public; They created a situation of danger from which Lorrinda, despite all reasonable efforts and precautions, was unable to extricate herself; They failed to ensure that the Defendant City was taking reasonable measures to protect members of the public from being struck by a baseball hit out of Port Arthur Stadium; They failed to train or teach members of their respective teams to ensure that they were aware of the dangers and risks associated with hitting a baseball out of Port Arthur Stadium; 2018 ONSC 758 (CanLII (m They failed to supervise members of their respective teams to ensure they were not endangering the safety of members of the public; and (n They breached the provisions of the Occupiers Liability Act, R.S.O. 1990, Chapter 0.2, and any amendments thereto. [10] In their statement of defence and cross-claim the Duluth Huskies denied that they were occupiers of the premises and, further, that they did not owe the plaintiff a duty of care or, in the alternative, did not breach any applicable standard of care. [11] The plaintiff delivered a reply which pleads that her injuries were caused when a baseball was hit out of the stadium by a player who was hitting the ball from midfield. [12] As stated, neither the City nor the Border Cats have delivered statements of defence. Positions of the Parties [13] Counsel for the Duluth Huskies argues that only the owner and occupier of the premises are potentially liable to the plaintiff. He argues that there is no legal basis on which the plaintiff

Legacy et al. v. Thunder Bay (Corporation et al. - 6 - could establish liability against the Duluth Huskies. Relying upon what he describes as the canonical decision of the House of Lords, Bolton v. Stone, [1951] A.C. 850, and others, he argues that there is no actionable malfeasance (playing baseball is not a tort. [14] Counsel for the plaintiff argues that this motion is premature because the positions of the remaining defendants are not yet known because the City and the Border Cats have not yet delivered their pleadings. The plaintiff argues that it is reasonably foreseeable that someone could be injured by a baseball leaving the stadium and that behaviour that was not an ordinary 2018 ONSC 758 (CanLII feature of the game could attract liability: see Hayter v. Bezanson, 2009 NSCA 113. Analysis and Disposition Liability in Tort [15] In Bolton v. Stone the plaintiff was injured by a cricket ball while standing on a highway outside her house. She sued the cricket club for damages for negligence. The striker of the ball, a member of the visiting team, was not a defendant. The accepted evidence was that this was an exceptional hit. Counsel for the Duluth Huskies relied upon this passage from Lord Porter: The hitting of the ball out of the ground is an incident in the game and, indeed, one which the batsman would wish to bring about. That passage continues but in order that the act may be negligent there must not only be a reasonable possibility of it happening but also injury being caused. Counsel for the Duluth Huskies also relied upon this excerpt from the judgment of Lord Normand: it is, of course, the object of every batsman to hit the ball over the boundary if he can. The passage continues: Again, the serious injury the cricket ball might cause must not be left out of account. But on the other side if the findings of fact show that the number of

Legacy et al. v. Thunder Bay (Corporation et al. - 7 - balls driven straight out of the ground by the players who use it in a cricket season is so small as to be almost negligible, and the probability of a ball so struck hitting anyone in [the roadway] very slight. [16] The touchtone is foreseeability. [17] In Hayter v. Bezanson a golfer was injured when another golfer took a Happy Gilmore shot which the trial judge found was not among the natural risks of golfing. 2018 ONSC 758 (CanLII Application to These Facts [18] Some facts do not appear to be seriously disputed. [19] It is obvious that High Street and its sidewalk are immediately adjacent to the protective netting that protects the public at that location. [20] A baseball broke the driver s side window of the plaintiff s car and struck her on the head. Her car appeared to be in line with the third base line when struck. [21] The protective netting appears to have large gaps or holes in it at this location. [22] At this time, the Duluth Huskies were in batting practice and, according to the hitting coach, a number of baseballs were hit out of the stadium during batting practice. [23] Mr. Jorgensen, the manager of the Border Cats, told the plaintiff that he was surprised that a player could hit the ball so far and said that was the first time that the ball had travelled towards the road.

Legacy et al. v. Thunder Bay (Corporation et al. - 8 - [24] The plaintiff s expert opined that the baseball could not have originated from around home plate and opined that the batter was located near third-base. In her reply, the plaintiff pleads that her injuries were caused by a baseball which was hit out of the stadium by a player who was hitting the ball from midfield. [25] Neither the owner nor the occupier have delivered statements of defence. It is possible that either the owner or occupier may concede that one or both of them is liable for injuries caused by a baseball hit out of the stadium regardless of who hits the baseball. That remains to 2018 ONSC 758 (CanLII be seen. The question, therefore, is whether, as counsel for the Duluth Huskies argues, a visiting player can never be liable for injury or damage arising from a baseball being hit out of the stadium. [26] If the Duluth Huskies players knew that they were hitting baseballs out of the stadium onto a busy city street because, for example, the protective netting which was obviously there to prevent such a mishap, was, to their knowledge, rendered ineffective because of gaps or holes, could they be liable? [27] If the Duluth Huskies were hitting balls out of the park from the vicinity of third-base, rather than home plate, rendering the stadium safety design features ineffective because of their choice of batting position, could they be liable? [28] These scenarios are within the allegations of negligence pleaded by the plaintiff and may be sufficient to trigger a duty of care. [29] Accordingly, I agree with the plaintiff that this motion is premature. The facts need to be ascertained. It may well be that, once the facts are determined by discovery or trial, there will not

Legacy et al. v. Thunder Bay (Corporation et al. - 9 - be any liability on the Duluth Huskies. Accordingly, this motion for summary judgment is dismissed. Costs [30] While I appreciate the position of the Duluth Huskies that they have been made a party to an action in which the liability, if any, may well rest with others and their frustration in not having the plaintiff proceed with the diligence that they would have preferred, I question the decision to force on a motion for summary judgment before the amendment of the pleading and 2018 ONSC 758 (CanLII the delivery of the statements of defence of the City and the Border Cats. When this motion was first before me, the plaintiff sought an adjournment because those statements of defence had not been received as the order to amend the pleading was just made on that day. Counsel for the Duluth Huskies strongly opposed the request for an adjournment insisting that this summary judgment motion proceed. I denied the request for an adjournment and appointment of a case management Judge and ordered that the motion proceed and set timelines for the delivery of material. These circumstances put the practicality of that decision to proceed with the summary judgment motion in issue. [31] The plaintiff shall deliver its costs submissions limited to three pages plus costs outline plus supporting material within 20 days of the release of this decision. The Duluth Huskies shall have 10 days to file their costs submissions with the same restrictions. Thereafter, within seven days, the plaintiff may deliver a reply, if necessary. I am assuming that the City is not seeking costs and has no submissions on costs given that the City did not file material on this motion and

Legacy et al. v. Thunder Bay (Corporation et al. - 10 - was, primarily, an observer. If I am incorrect then the City may file submissions by the same deadline as the Duluth Huskies. Original signed by The Hon. 2018 ONSC 758 (CanLII Released: January 31, 2018

Legacy et al. v. Thunder Bay (Corporation et al. - 2 - /sab 2018 ONSC 758 (CanLII