Dyke v. British Columbia Amateur Softball Association, (2008) 250 B.C.A.C. 70 (CA)

• Judge: Donald, Levine and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 19, 2007
• Jurisdiction: British Columbia
• Citations: (2008), 250 B.C.A.C. 70 (CA);2008 BCCA 3

Dyke v. Amateur Softball Assoc. (2008), 250 B.C.A.C. 70 (CA);

    416 W.A.C. 70

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JA.030

Marena Dyke (appellant/plaintiff) v. British Columbia Amateur Softball Association and British Columbia Amateur Softball Association carrying on business variously as Softball BC, Softball B.C. or Softball City (respondent/defendant)

(CA033468; 2008 BCCA 3)

Indexed As: Dyke v. British Columbia Amateur Softball Association

British Columbia Court of Appeal

Donald, Levine and Kirkpatrick, JJ.A.

January 8, 2008.

Summary:

The plaintiff suffered a serious head injury when she was struck by a line drive foul ball while acting as scorekeeper for her co-ed slo-pitch softball team. She would have been in the dugout and out of harm's way, but the dugout was flooded. She brought a claim under the Occupiers Liability Act, against the defendant, which operated Softball City, a four-diamond ballpark where the mishap occurred.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 1422, dismissed the action. The court found that there were other completely safe alternative locations to the plaintiff and that on providing safe alternatives, the defendant met the standard of care. Alternatively, the court found that even if the standard of care required a functional dugout, the chain of causation was broken when the plaintiff chose to stand in an unprotected place and failed to keep a lookout for foul balls. The plaintiff appealed.

The British Columbia Court of Appeal dismissed the appeal.

Torts - Topic 61

Negligence - Causation - Causal connection - The plaintiff suffered a serious head injury when she was struck by a line drive foul ball while acting as scorekeeper for her co-ed slo-pitch softball team - She would have been in the dugout and out of harm's way, but the dugout was flooded - She brought a claim under the Occupiers Liability Act, against the defendant, which operated Softball City, a four-diamond ballpark where the mishap occurred - The trial judge dismissed the action - The trial judge found that there were other completely safe alternative locations to the plaintiff and that on providing safe alternatives, the defendant met the standard of care - Alternatively, the trial judge found that even if the standard of care required a functional dugout, the chain of causation was broken when the plaintiff chose to stand in an unprotected place and failed to keep a lookout for foul balls - The trial judge felt that he was following a clear line of authority, to deal with his last alternative reason for refusing liability: the "clear line" or "last chance" doctrine - The British Columbia Court of Appeal confirmed that the "clear line" or "last chance" doctrine was extinct and occupied no place in the law of torts in British Columbia - Given that the trial judge had not erred on the issue of standard of care, the appeal was dismissed - See paragraphs 26 to 36.

Torts - Topic 3574

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Standard of care (incl. evidence) - The plaintiff suffered a serious head injury when she was struck by a line drive foul ball while acting as scorekeeper for her co-ed slo-pitch softball team - She would have been in the dugout and out of harm's way, but the dugout was flooded - She brought a claim under the Occupiers Liability Act, against the defendant, which operated Softball City, a four-diamond ballpark where the mishap occurred - The trial judge dismissed the action - The trial judge found that there were other completely safe alternative locations to the plaintiff and that on providing safe alternatives, the defendant met the standard of care - The British Columbia Court of Appeal affirmed the decision - Several facts were significant in determining what care was reasonable in the circumstances to ensure that softball participants were reasonably safe: (1) even when the dugouts were usable, some score keepers sat in the stands behind the dugout , where they could get a better view of the play and were not too distant from the players; (2) players did not always stand beside the dugouts when they were flooded; and, (3) the defendant likely did not know that participants were gathering beside the dugout - The trial judge decided the standard of care on reasonableness in the circumstances that he found them - It was open to him to hold that the standard was to provide a safe place for a scorekeeper, not necessarily the most convenient place and that such a place was provided to the plaintiff - See paragraphs 16 to 25.

Torts - Topic 3712

Occupiers' liability or negligence for dangerous premises - Invitees - Liability of particular occupiers (incl. duty and standard of care) - Recreational and sports arenas or facilities - [See Torts - Topic 3574 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 16].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 28].

Lawrence v. Prince Rupert (City) et al., [2003] B.C.T.C. 465; 16 B.C.L.R.(4th) 164; 2003 BCSC 465, affd. (2005), 219 B.C.A.C. 103; 361 W.A.C. 103; 49 B.C.L.R.(4th) 89; 2005 BCCA 567, refd to. [para. 30].

McKee v. Malenfant, [1954] S.C.R. 651; [1954] 4 D.L.R. 785, refd to. [para. 32].

Laface v. McWilliams et al., [2005] B.C.T.C. 291; 29 C.C.L.T.(3d) 219; 2005 BCSC 291, affd. [2006] B.C.A.C. Uned. 55; 39 C.C.L.T.(3d) 209, discontinuance was filed [2006] S.C.C.A. No. 236 (S.C.C.), refd to. [para. 34].

Counsel:

I.G. Nathanson, Q.C., R.B. Webster, Q.C., and D.F. Corrin, for the appellant;

E.A. Dolden and K.S. Fast, for the respondent.

This appeal was heard on November 19, 2007, at Vancouver, B.C., by Donald, Levine and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Donald, J.A., on January 8, 2008.