



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Dyke 
          v. British Columbia Amateur Softball Assn.,







2008 
          BCCA 3



Date: 20080108

Docket: CA033468

Between:

Marena Dyke

Appellant

(
Plaintiff
)

And

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
)




Before:


The 
          Honourable Mr. Justice Donald




The 
          Honourable Madam Justice Levine




The 
          Honourable Madam Justice Kirkpatrick








I. 
          G. Nathanson, Q.C., R. B. Webster, Q.C.
and D. F. Corrin


Counsel for the Appellant




E. 
          A. Dolden and K. S. Fast


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




November 19, 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 8, 2008








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Donald




Concurred 
          in by:




The 
          Honourable Madam Justice Levine

The 
          Honourable Madam Justice Kirkpatrick



Reasons 
    for Judgment of the Honourable Mr. Justice Donald:

[1]

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
, R.S.B.C. 1996, c. 337, against the defendant, which operates 
    Softball City, a four-diamond ballpark in Surrey where the mishap occurred.

[2]

On a set of agreed facts supplemented by other evidence, the parties 
    proceeded to a summary trial on liability under Rule 18A before Mr. Justice 
    Wong.

[3]

The plaintiff advanced her claim on the theory that the defendant failed 
    in its duty to provide her a safe place to carry out her activities as a scorekeeper.  
    Rather than use the below-ground dugout, which was flooded, she stood with 
    her team beside the dugout along the first-base line, protected only by a 
    four-foot-high steel mesh fence.

[4]

The judge dismissed the action:  2005 BCSC 1422.  He found that there 
    were other completely safe alternative locations available to her, and that 
    on providing safe alternatives, the plaintiff met the standard of care.  He 
    found that, in the alternative, 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.

[5]

The plaintiff appeals on the grounds that the judge:

(i)         made a palpable and overriding error in his 
    finding of specific facts, which affected the trial result;

(ii)        erred in law in defining and applying the 
    standard of care owed to the plaintiff;

(iii)       erred in law or in drawing inferences from 
    facts in finding that any negligence did not expose the plaintiff to an unreasonable 
    risk;

(iv)       erred in law in finding that any risks were 
    "inherent", and incorporated into the
Occupiers Liability 
    Act
; and

(v)        erred in law by incorporating the reasoning 
    of "last clear chance" into his analysis.

[6]

I would dismiss the appeal.  In my opinion, the judge made no errors 
    of fact that affected the result.  Nor do I think that the judge erred in 
    defining the standard of care or in applying the standard to the circumstances 
    of this case.  The last three grounds of appeal refer to alternate bases upon 
    which the judge denied liability.  I find it unnecessary to decide those 
    grounds, although I think it necessary for the development of the law that 
    I express my disapproval of the reasoning to which the fifth ground refers.

Facts


[7]

The following is the statement of agreed facts:

1.         
    The Defendant, British Columbia Amateur Softball Association and British Columbia 
    Amateur Softball Association carrying on business variously as Softball B.C., 
    Softball BC or Softball City (Softball City) is a society and at the material 
    time the registered lessee of the Softball City Sports and Entertainment Complex 
    including buildings, play fields and facilities located at the corner of 24th 
    Avenue and 148th Street in Surrey, British Columbia (the Premises).

2.         
    Softball City was built in approximately 1989 by the British Columbia Amateur 
    Softball Association and was designed, built and constructed to host softball 
    leagues and tournaments at all levels of play from recreational, competitive 
    to international championship level and all ages, from children to adults.

3.         
    The subject matter of this action is damages for a brain injury sustained 
    by the Plaintiff when she was hit in the head at a co-ed slo-pitch softball 
    tournament held at Softball City.

4.         
    On September 30, 2001, the plaintiff was acting as scorekeeper for a team 
    called the Eagles when she was struck on the head by a foul ball hit by 
    a player on the opposing team called the Dawgz (the Incident) during a 
    co-ed slo-pitch game being played on Diamond One (the Game).

5.         
    At the material time, Softball City was the occupier of the Premises as defined 
    by the
Occupiers Liability Act
, R.S.B.C. 1996, c. 337 and amendments 
    thereto.

6.         
    Softball City designed its facility to have fenced dugouts for all participants 
    on all four diamonds.

7.         
    Softball City was constructed in 1989 with four diamonds.  At that time all 
    diamonds, including diamond #1, had two fenced at grade dugouts with cement 
    flooring located on the first and third base line.

8.         
    Softball City built dugouts for the use of scorekeepers, spares, coaches and 
    bat boys and girls (participants) during game play.  The dugouts consisted 
    of a roofed area surrounded by chain fencing on four sides, with benches for 
    seating inside.

9.         
    Diamond #1 at Softball City was modified in 1993 to lower the floor of its 
    two dugouts from grade level to below ground level and to expand the seating 
    capacity.  The dugouts were lowered to allow increased spectator seating capacity 
    and allow for increased revenue from seat sales and for the roof to provide 
    a platform for TV cameras.

10.       
    When the dugouts on diamond #1 were modified, they were lowered approximately 
    3 feet, cement retaining walls were installed, wooden sides and backs were 
    installed and the solid roof was installed.  The front, facing the field of 
    play, retained the fencing above the retaining wall and below the roof (the 
    1993 Modifications).

11.       
    There is no evidence that Softball City applied for or received any building 
    permits from the City of Surrey, or any building inspection of the dugouts 
    when they were modified in 1993.

12.       
    After the 1993 Modifications, Softball City installed an automatic sump pump 
    underneath the dugouts on diamond #1.  The automatic sump pump, when functioning, 
    was triggered by the existence of standing water as it accumulated and pumped 
    out the water (the Automatic Sump Pump System).

13.       
    When the Automatic Sump Pump System was not functioning, the dugouts would 
    fill with water periodically.  When flooded, they would remain flooded until 
    the water was pumped out using an electric pump and/or the automatic sump 
    pump system was repaired.

14.       
    The use of the Automatic Sump Pump System, installed in 1993, was discontinued 
    sometime between 1998 and before the Incident.

15.       
    The Automatic Sump Pump System was replaced by an arrangement whereby a Softball 
    City employee would place an electric pump in the sump in the dugout to remove 
    water.

16.       
    The removal of accumulated water from dugouts on diamond #1 requires a worker 
    to remove the grate covering the flooded sump, place the pump into the sump, 
    direct the exhaust hose to drain the water onto the surface under the stands, 
    plug the electrical cord of the pump in, and wait 5 to 30 minutes.  The process 
    must then be reversed before the dugout can be occupied by participants.

17.       
    From at least 1999, Softball City had no written maintenance protocol for 
    responding to accumulation of water in the dugouts on diamond #1.

18.       
    From at least 1999, Softball City relied solely on complaints or the personal 
    initiative of employees to assess and remove water.

19.       
    Dugouts are provided as safety equipment for participants in ball games, they 
    protect participants from being struck by errant foul balls, overthrows, discarded 
    bats, and other hazards (softballs hazards).  Dugouts provide a place of 
    safety from Softballs Hazards.

20.       
    Dugouts protect participants whose attention is turned away from the play.  
    Participants make use of the dugouts during game play because participants 
    attention is necessarily diverted from time to time, including by scorekeepers 
    keeping score, players adjusting gear, coaches discussing matters with players.

21.       
    Some players do not utilize the dugouts on diamond #1, but instead locate 
    themselves elsewhere for a variety of reasons, not limited to a poor view 
    of the field, darkness, dampness or water in the dugouts, desire to sit near 
    friends, desire to be outside.

22.       
    The floors of the dugouts on diamond #1 are the lowest point on the Softball 
    City property.  The dugouts are susceptible to flooding and accumulation of 
    water.

23.       
    Water accumulated in the dugouts on diamond #1 from time to time such that 
    they were not usable by participants.

24.       
    Dugouts which are flooded or have accumulated water cannot reasonably be used 
    by participants.

25.       
    At the time of the Incident the plaintiff was acting as score­keeper.  During 
    the Game, the Plaintiff was also available to participate as a player, if 
    the Eagles were short players.

26.       
    For the purposes of the Game, the Eagles were designated the away team and 
    the Dawgz were designated the home team.

27.       
    During the Game, the Plaintiffs husband, Dave Dyke, was participating both 
    as a coach and a player for the Eagles.

28.       
    At the time of the Incident, the Dawgz were up to bat and the Plaintiffs 
    team mates were defending the in-field and the outfield.

29.       
    No evidence has been adduced that anyone who played on Diamond One on September 
    30, 2001 complained to Softball City on that day and prior to the Incident 
    about water in the Dugout.

30.       
    During the Game and at the time of the Incident, the Plaintiff was standing 
    beside the 1st base dugout (the Dugout) directly behind the four foot chain 
    link fence that separates the playing field from the spectator stands and 
    dugouts.

31.       
    During the Game, there was accumulated water in the Dugout.

32.       
    Due to the presence of the accumulated water in the Dugout, the Plaintiff 
    was unable to use the dugout and stood beside the Dugout while keeping score, 
    instead of sitting inside it.

33.       
    If the dugout was usable, on September 30, 2001 the Plaintiff would have occupied 
    the dugout to keep score during the Game.

34.       
    The Plaintiff and her team members could not reasonably access the field in 
    the usual way through the Dugout during the Game; instead they utilized the 
    utility gate beside the 1st base Dugout.

35.       
    During the Game, there were numerous empty seats in the area behind the protective 
    screening (the Backstop).

36.       
    The Backstop on Diamond One originates behind home plate and extends to both 
    dugouts but stops before the area in which the plaintiff and her team mates 
    were standing.

37.       
    At the time of the Incident, the Plaintiff had watched, kept score, and played 
    slo-pitch at a recreational level for more than 14 years.

38.       
    At the time of the Incident, the Plaintiff was aware that balls are occasionally 
    hit out of the playing field and into the stands during the course of a game.

39.       
    At the time of the Incident, the Plaintiff was aware that it is important 
    to keep ones eyes on the game unless in a protected area.

40.       
    At the time of the Incident, the Plaintiff was making note of the score in 
    a scorekeepers book provided by the defendant.

41.       
    Prior to the Incident, the Plaintiff had played slo-pitch at Softball City 
    on numerous occasions.

[8]

In addition to these facts, the plaintiff filed nine affidavits and 
    the defendant filed 15.  For the most part, the affidavits speak to softball 
    customs, usage and practices, and to the condition of the facilities at Softball 
    City.  The plaintiff adduced expert opinion by affidavit as to the industry 
    standard for participant safety in softball parks, and the plaintiff read 
    in passages from the examinations for discovery of the defendant's representatives.

Issues


[9]

I propose to discuss the following issues:

(1)        Did the judge make any reversible errors of 
    fact?

(2)        Did the judge err in defining the standard 
    of care or in finding that it was met?

(3)        Did the judge resurrect the "last clear 
    chance" doctrine?

Discussion


Factual 
    Errors

[10]

There are three points of fact said to be palpable and overriding errors 
    (the review standard accepted by the plaintiff):

(1)        the description of the location of the accident;

(2)        
    the reference to Surrey's safety standards; and

(3)        
    the description of the plaintiff as a "spectator".

[11]

In the introduction to his reasons for judgment, the judge said:

[3]  
    At the time of the incident, the plaintiff was keeping score while standing 
    in the spectator area to the right of the first base dugout behind the fence 
    that separates the playing field from the spectator stands.

[12]

It is not strictly accurate to say that this is a spectator area.  
    It would have been more precise to say that the area lay between the grandstand 
    and a set of bleachers, but I cannot see that it makes any difference in the 
    result.  A series of photographs of the scene clearly shows the location of 
    the accident in relation to the seating area for spectators.  The photographs 
    were in evidence; the judge could not have been mistaken about where the accident 
    occurred.

[13]

The second alleged error concerns standards for fencing.  The judge 
    said:

[17]  
    In this case, the standards for protective fencing were set by both the City 
    of Surrey and the softball facility industry.  The court has received evidence 
    from Mr. Todd (at para. 20 of his affidavit) that the protective screening 
    on each of the diamonds at Softball City exceeds both the minimum standards 
    mandated by the City of Surrey and the industry standard.

[14]

To the extent that this implies Surrey created comprehensive standards 
    for fencing, it is not in accordance with the evidence.  Surrey's rules are 
    about the diameter of the pipe and the dimensions of the steel mesh used in 
    the fencing, not about where fences are required and at what height.  I do 
    not think that this potentially misleading description of Surrey's fencing 
    standards could have affected the judge's reasoning.  The important standard 
    was that set by the industry.

[15]

The third error of fact is said to be the judge's treatment of the 
    plaintiff as a spectator rather than as a participant.  I do not know how 
    that could be said in light of the judge's reference to the plaintiff as a 
    scorekeeper:

[16]  
    ... There can be no question that the plaintiff appreciated the risk of being 
    struck by a foul ball, since she was an experienced softball player and scorekeeper.  
    In the circumstances it was reasonable to expect her to assume such a risk.

Standard 
    of Care


[16]

The definition of the standard of care involves a finding of mixed 
    fact and law and attracts a high degree of deference:
Housen v. Nikolaisen
, 
    2002 SCC 33, [2002] 2 S.C.R. 235.

[17]

In his reasons, the judge expressly adverted to the
Occupiers 
    Liability Act
in formulating the standard of care.  He referred to 
    these provisions:

Application of Act

2          
    Subject to section 3(4), and sections 4 and 9, this Act determines the care 
    that an occupier is required to show toward persons entering on the premises 
    in respect of dangers to them, or to their property on the premises, or to 
    the property on the premises of persons who have not themselves entered on 
    the premises, that are due to the state of the premises, or to anything done 
    or omitted to be done on the premises, and for which the occupier is responsible 
    by law.

Occupiers' duty of care

3 
    (1)     An occupier of premises
owes a duty to take that care that in all 
    the circumstances of the case is reasonable to see that a person
, and 
    the persons property, on the premises, and property on the premises of a 
    person, whether or not that person personally enters on the premises,
will 
    be reasonably safe
in using the premises.

(2)      The duty of care referred to in subsection (1) applies in relation 
    to the

(a)        
    condition of the premises,

(b)        
    activities on the premises, or

(c)        
    conduct of third parties on the premises.

(3)      Despite subsection (1), an occupier has no duty of care to a person 
    in respect of risks willingly assumed by that person other than a duty not 
    to

(a)        
    create a danger with intent to do harm to the person or damage to the persons 
    property, or

(b)        
    act with reckless disregard to the safety of the person or the integrity of 
    the persons property.

[Emphasis of Wong J.]

[18]

The judge defined the standard of care in this way:

[13]  
    The plaintiff claims that the standard of care was to "provide an area 
    that facilitates quick and easy access to the field of play but that also 
    protects participants from Softball's Hazards".  With respect to the 
    risk of being struck by a foul ball, the standard of care imposed on occupiers 
    is
only to provide adequate fencing in order to protect those persons located 
    in 'danger zones'
, those areas where the risk of being struck would otherwise 
    be unreasonably high.  There is no obligation under the
Act
to provide an area that is both protected
and
provides quick access 
    to the field; the
Act
deals merely with safety.

[Emphasis of Wong J.]

[19]

Subsection 3(1) of the Act talks about reasonableness:  "An occupier 
    ... owes a duty to take that care that in all the circumstances of the case 
    is
reasonable
to see that a person ... will be
reasonably safe
in using the premises."

[20]

Several facts are significant in determining what care was reasonable 
    in the circumstances to ensure that softball participants were reasonably 
    safe.  The first is that even when the dugouts are usable, some scorekeepers 
    sit in the stands behind the dugout
,
where they can get a better view of the play and are 
    not too distant from the players.

[21]

Scorekeepers usually prefer to be with their team, because, in addition 
    to keeping the score, they monitor the batting order of both teams.  They 
    direct the batters on their own team to go to the plate in the correct sequence, 
    and, in relation to the other team, they watch for a change in the batting 
    order, which results in an automatic "out".  So when the dugout 
    is flooded and the players stand behind the low fence beside the dugout, if 
    the scorekeeper wants to be close to the players, she or he also stands there.  
    But, and this is the crucial fact, not all scorekeepers work from the same 
    location as the players, even when the dugouts are usable.  Some go into the 
    stands, and there they enjoy the safety of a full screen.

[22]

The second significant fact is that players do not always stand beside 
    the dugouts when they are flooded.

The evidence is far from uniform as to where players 
    go when not in the field, on deck, or at bat.  Some sit in the stands to be 
    with family and friends.  It is to be remembered that this is recreational 
    softball, where team discipline is comparatively relaxed.

[23]

The third fact is that the defendant likely did not know that participants 
    were gathering beside the dugout.  The judge noted, at para. 18, that there 
    was no evidence that the defendant either set up the location as an alternate 
    dugout or was aware that it was being used as such.

I 
    have examined all the evidence to see whether the defendant was aware of the 
    use of the area beside the dugout as an alternative in the event of flooding, 
    and I could find nothing to that effect.

[24]

The judge decided the standard of care on reasonableness in the circumstances 
    as he found them.  No conceptual error is evident, nor is there any factual 
    finding that fails the palpable and overriding error test.

[25]

I think it was open to the judge 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.  
    That holding brought an end to the liability analysis, and the defendant was 
    entitled to an order dismissing the claim.

Last 
    Clear Chance

[26]

As mentioned, the judge went on to discuss liability on the postulation 
    that the standard was to provide a functional dugout.  He referred to cases 
    in Canada and the United States, and an American textbook, dealing with the 
    assumption of risk at sporting events.  It is not necessary for me to express 
    an opinion on the judge's treatment of this subject.  However, I think it 
    is necessary, because the judge felt he was following a current line of authority, 
    to deal with his last alternative reason for refusing liability: the "clear 
    line" or "last chance" doctrine.

[27]

I wish to say in the strongest terms that the doctrine is extinct and 
    occupies no place in the law of torts in this jurisdiction.

[28]

If a defendant breaches a standard of care and a plaintiff fails to 
    take care for her own safety, and but for these faults (
Athey v. Leonati
, 
    [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235) an injury would not have occurred, 
    then, under the
Negligence Act
, R.S.B.C. 1996, c. 333, ss. 1(1) 
    and 8, liability is shared according to the respective degrees of fault:

1 
    (1)     If by the fault of 2 or more persons damage or loss is caused to one 
    or more of them, the liability to make good the damage or loss is in proportion 
    to the degree to which each person was at fault.

* * *

8          
    This Act applies to all cases where damage is caused or contributed to by 
    the act of a person even if another person had the opportunity of avoiding 
    the consequences of that act and negligently or carelessly failed to do so.

Drawing 
    a clear line between the defendant's and plaintiff's negligent acts gives 
    expression to a linear form of thinking and compartmentalizes causes according 
    to the timing of events.  What the legislation requires is a lateral analysis 
    that examines the weave of causal factors that brought about the loss.  So 
    the appropriate image is of a web, rather than a chain where it is said that 
    the linkage is broken by the plaintiff's own negligence.

[29]

In this case, it would be wrong to say the plaintiff is solely responsible 
    for her injuries because her lack of care came after the failure to drain 
    the dugout.  If the defendant had been under a duty to provide a dry dugout, 
    then its failure would have been a tortious cause of the harm suffered, because 
    it was at least one of the reasons why the plaintiff stood in the place where 
    she was injured.

[30]

The history of "last clear chance" and its demise in British 
    Columbia was explored in a lively and informative judgment by Mr. Justice 
    Esson, dissenting in
Lawrence v. Prince Rupert (City)
, 2005 
    BCCA 567, 49 B.C.L.R. (4th) 89.  The plaintiff in that case fell over a power 
    pole left lying on a sidewalk by B.C. Hydro.  It was daylight and the plaintiff 
    saw the pole, but she stumbled as she tried to avoid it.  The action was dismissed.  
    The appeal was taken on the ground that the judge applied the last clear chance 
    doctrine.  The majority rejected that ground; they held that the trial judge 
    dismissed the action on a finding of remoteness.  Esson J.A. was of the 
    opinion that while the judge correctly understood the law, he failed to apply 
    it.  The majority took no issue with Esson J.A.'s discussion of the effect 
    of the
Negligence Act
on last clear chance.

[31]

Esson J.A. pointed out that s. 8 (then s. 10) was added to the 
    Act in 1970 for the "specific purpose of requiring, in cases where both 
    parties were found to be at fault, apportionment to be based upon the relative 
    degrees of fault and to preclude the court from resorting to the last chance 
    doctrine" (at para. 56).  He described, at para. 74, the following 
    passage (quoted at para. 73) from the trial judgment (2003 BCSC 465, 16 B.C.L.R. 
    (4th) 164) as a correct statement of the law:

[29]  
    Some years ago, before the amendment to the
Contributory Negligence Act
in 1970, the issue would often be framed in terms of whether a clear line 
    could be drawn between the negligence of the plaintiff and the negligence 
    of the defendant, so as to justify the conclusion that the negligence of the 
    defendant had ceased to be an operating factor in the accident.  It appears 
    to have been the law that, if the defendant had negligently created a situation 
    of risk that could cause an accident, and if the plaintiff knew (or ought 
    to have known) of that risk and by the exercise of reasonable care could have 
    avoided the accident but failed to do so, then, in law, the plaintiff's negligence 
    would be the sole cause of the accident.  Examples of this reasoning may be 
    found in the cases of:
Malenfant v. McKee
, [1954] S.C.R. 651 (S.C.C.);
Bruce (County) v. McIntyre
,
[1955] 1 D.L.R. 785 (S.C.C.); and
Ward v. R.
(1956), 4 D.L.R. (2d) 597 (S.C.C.).

[30]  
    The problem with that analysis is of course that it embodies the "last 
    chance" doctrine, which was long ago removed from our law.  Section 8 
    of the
Negligence Act
now reads as follows:

[Quotation 
    omitted.]

[31]  
    It seems to me that, under the old law, where a plaintiff proved that the 
    defendant's negligence caused or contributed to the accident, the defendant 
    could escape liability by showing that the plaintiff could have avoided the 
    consequences of his negligence by the exercise of reasonable care.  If that 
    was shown, then the defendant's negligence (which had the potential to cause 
    the accident) would "cease to be an operating factor".  In other 
    words, even though the plaintiff had made out a prima facie case on the issue 
    of causation, proof that the plaintiff had the "last clear chance", 
    would break the chain of causation, and the plaintiff would be found solely 
    at fault.  That is no longer the law, but the repeal

of the 
    last chance doctrine does not absolve the plaintiff from establishing that 
    the defendant's negligence was at least part of the cause of the accident.

[32]

While it was debatable whether the trial judge in
Lawrence
applied the last clear chance doctrine, there can be no doubt that the judge 
    in this case did so.  He cited, at para. 40, the case of
McKee v. Malenfant
, 
    [1954] S.C.R. 651, [1954] 4 D.L.R. 785, for the clear line doctrine, 
    which is another name for the same idea:

[40]  
    Further, a clear line can be drawn between any negligence of the defendant 
    and the negligence of the plaintiff, such as to relieve the defendant of liability.  
    The defendants rely on the Supreme Court of Canadas decision in
McKee 
    v. Malenfant
, [1954] S.C.R. 651, where the Court held that where a 
    clear line can be drawn between the negligence of the plaintiff and the 
    negligence of the defendant, then the plaintiff will be held solely responsible.

[33]

For the reasons given by Esson J.A. in
Lawrence
, 
    that case is no longer applicable to contributory negligence cases in British 
    Columbia.

[34]

The judge also cited a recent trial court decision,
Laface v. 
    McWilliams
, 2005 BCSC 291, 29 C.C.L.T. (3d) 219, aff'd (
sub nom.

Laface v. Boknows Hotels Inc.
) 2006 BCCA 227, 39 C.C.L.T. (3d) 
    209 (a notice of discontinuance was filed in the Supreme Court of Canada, 
    [2006] S.C.C.A. No. 236), as a current application of the clear line doctrine.  
    However, in my opinion, the reference to the doctrine in
Laface
was in passing and unnecessary to the result.

[35]

As I read the judgment in
Laface
, the key finding was 
    that the action of McWilliams, an intoxicated driver, in passing on the right 
    of a vehicle carelessly parked by Laface, and driving into a group of pedestrians, 
    was so unexpected that it was too remote an event to be foreseen by Laface.  
    The claim against Laface was dismissed on proximity, not clear line.

[36]

The defendant does not attempt to support the judgment by reference 
    to the judge's clear line reasoning.  It is content to rely on the proximity 
    approach taken by the majority in
Lawrence
, and it submits that 
    the failure to drain the dugout was too remote from the injury.  I would prefer 
    not to venture an opinion about remoteness in this case, as the appeal can 
    be decided on the standard of care issue.

Disposition


[37]

For the foregoing reasons, I would dismiss the appeal.

The Honourable Mr. Justice Donald

I 
    agree:

The 
    Honourable Madam Justice Levine

I 
    agree:

The Honourable 
    Madam Justice Kirkpatrick


