Karpouzis v. Toronto (City of), 2020 ONSC 143 (CanLII)

Date: 2020-01-08

Facts

At the time of the accident, the Plaintiff, Mr. Diomostenis Karpouzis, was 34 years old and an experienced skateboarder. Mr. Karpouzis went skateboarding for a cardio-workout on a trail within a City of Toronto park (South Humber Park) at 2 AM. Mr. Karpouzis had often rode the trail on a mountain bike but this was his first time skateboarding it.

Mr. Karpouzis was alone, sober, and was not wearing any protective gear or a helmet. The recreational trail in the park was unlit and it was dark at night. Mr. Karpouzis testified that he entered a section of the trail that was covered by trees making it so dark that he could not see his hands. Mr. Karpouzis fell off his skateboard and suffered a serious head injury. Mr. Karpouzis stated that he assumed that a piece of debris or terrain that he could not see got into his wheels causing them to freeze.

The park was open 24 hours a day. There were warning signs prohibiting motorized vehicles, advising cyclists that the speed limit on the trail is 20 km/hr, and that cyclists should yield to pedestrians. There were no signs prohibiting skateboarding. warning of limited visibility, warning of sudden changes in visibility on the trail, or that use of the trail is at a person’s own risk.

Mr. Karpouzis sued the City for negligence (occupiers’ liability – reckless disregard in maintaining the trail) and for public nuisance. The City asked for a summary judgement dismissing the case.

The judge dismissed Mr. Karpouzis’s suit finding that there were no genuine issues requiring a trial.

Plaintiff’s Human Factors Position

The judge recognized Mr. David Liske, principal associate of Liske Accident and Injury Experts, as an accident reconstruction expert. Mr. Liske is a kinesiologist with a M.A. and is a Certified Professional Ergonomist with a specialization in Human Factors Forensics and Forensic Vision. The judge noted that Mr. Liske has been involved in approximately 300 cases where he has taken light measurements.

Mr. Liske provided expert evidence stating that the light on the trail went from 19.0 LUX at the start of the trail to quickly drop down to an undetectable level of LUX at the collision location. Mr. Liske stated that 3.0 LUX is the borderline level of illumination for pattern or shape recognition. Mr. Liske opined that the rapid change in light conditions would have reduced a person’s ability to perceive and react to hazards and this therefore caused Mr. Karpouzis to fall from his skateboard. Mr. Liske stated that the City could have eliminated the hazard by 1) closing the trail at night, 2) adding lighting, 3) providing guard rails or access barriers to prevent nighttime access, 4) providing signage saying the trail was closed at night and was unlit.

Mr. Liske had signed and submitted a report prior to trial but did not acknowledge that another person, Ms. Janice Wornak, had conducted the site visit and written the report. After the report was submitted, Mr. Liske did conduct a site visit where he confirmed the measurements taken by Ms. Wornak. During the trial, when directly asked about the site visits in the report, Mr. Liske gave the impression that he rather than Ms. Wornak had conducted the site visits described in the report.

The judge called out Mr. Liske’s deviousness and stated “Mr. Liske should be very embarrassed by his unprofessionalism and the manner of his testimony because there would have been nothing wrong by his being forthcoming and candidly reporting about Ms. Wornak’s qualifications and about her observations, which were confirmed by measurements with photographs, light sensor/meter readings, and drawings and by Mr. Liske’s attendance at the park.”

The judge felt that Mr. Liske, while devious, was qualified, both in accreditations and work experience to provide evidence regarding human factors. The judge found no reason to disregard Mr. Liske’s evidence.

Defendant’s Human Factors Position

The City did not call a human factors expert and did not challenge the findings provided by Mr. Liske. The City conceded that the trail was dark at night but argued that the darkness of the accident site covered by trees would have been evident at the entrance of the trail. The City argued that the court does not need illumination levels measured eight years after the accident to understand that it was dark on the trail. Instead, the City submitted that the illumination levels are not material to the legal issues in the case.

Judge’s Rationale

The judge decided that a summary judgment was appropriate for this case since there was no more evidence that could proffered with the City having decided not to call an expert to counter Mr. Liske’s evidence. In other words, the parties were in agreement about what known to have occurred and what remained was the legal argument.

The judge decided that the City had not acted with reckless disregard in maintaining the trail or in removing hazards of debris through regular inspections and maintenance. The judge decided that darkness of the trail was not a trap and was self-evident even without signing. The judge wrote “An occupier of a recreational trail does not create a hazard when the risks inherent in entering the entering the recreational trail are obvious.” Neither did the judge feel the City acted with reckless disregard by leaving the trail open at night.

The judge specifically distinguished this case from Labanowicz v Fort Erie where a municipality showed reckless disregard by placing an unsecured bollard within a recreational bicycle trail and without corresponding pavement markings.

The judge similarly dismissed the public nuisance claim from Mr. Karpouzis stating that “keeping a park trail open at night with an unilluminated trail does not interfere with the public’s health, safety, morality, or convenience.”