The City of Revelstoke has been found 35 per cent liable for the “catastrophic injuries” a Surrey, B.C., firefighter sustained when his head struck what is believed to be a stump while diving into a lake.
According to a Supreme Court of B.C. decision published Jan. 13, Aaron Gelowitz, then 34, was staying at the Williamson Lake Park and Campground July 28, 2015, when he dove into the lake and banged his head.
On impact, he suffered a severe burst fracture of his C6 vertebra, with associated spinal cord injury. He subsequently spent months in the hospital healing from the injury.
In the years that followed, Gelowitz launched a lawsuit saying he took reasonable precautions before heading into the lake and while he acknowledged he was 50 per cent responsible for the injury, he claimed the City of Revelstoke shared liability.
He claimed that the city should have put up signs advising that the water was shallow and diving may be dangerous due to “underwater hazards, such as rocks and submerged logs.”
The city, in response, said it met its standard of care by installing appropriate and adequate “no diving” and “swim at your own risk” signs along the lakefront, which was a distance from where the injury occurred.
At most, it said it could only see that it would be apportioned five per cent of the fault while the rest to be put on the shoulders of Gelowitz, or Geolowitz and Alpine Village.
The property from which Gelowitz dived is owned by Alpine Village but the lakebed is owned by the province of B.C.
Ultimately, Gelowitz argued that regardless of the fact it didn’t own the land, the city 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.
Throughout the decision, Justice Karen Horsman weighed evidence on everything from a raft that was near the place of injury to witnesses and signage to reach a conclusion on issues like where Gelowitz dove from, what he struck, whether the city was negligent in failing to take reasonable steps to protect his safety and how fault for the plaintiff’s loss should be apportioned.
When it came to posting warnings she found that the city should have done more.
“I conclude that the City owed a prima facie of care to the plaintiff—as an invitee to facilities owned and controlled by the City— to warn him of the known risks associated with the use of the Park facility, which would include a duty to warn of the risks of diving,” Justice Karen Horsman said.
How much to blame was something she also had to consider.
“(Gelowitz) was the person primarily responsible for his own safety. He has acknowledged that it was careless to dive into the lake based on a visual inspection of the water alone. He agrees that he knew better. The plaintiff’s assumption that the water was deep enough for a safe shallow dive based on visual inspection alone was not a reasonable one. The plaintiff fell well short of the standard of care required of him in the circumstances,” Justice Horsman said in the decision.
“(At) the same time, I do not accept the city’s argument that its fault is effectively de minimus. The city owed a duty to park users to warn of the risks of diving. The City also fell well short of meeting its standard of care, specifically in relation to the maintenance of warning signs on the raft. The city received and failed to follow, specific risk management advice that “no diving” signs be painted and maintained on the raft.
“The City’s failure to follow that advice appears to have been the result of poor staff transition planning. The cost to the City of meeting its standard of care was minimal, while the risk of harm to Park users was grave.”
With that, Justice Horsman rules Gelowitz to be 65 per cent at fault and the City of Revelstoke to be 35 per cent.
The judgment did not address damages or costs.