February 08, 2016 - 1:00 PM
CALGARY - It is unlikely the operator of a high-performance training facility in Calgary would be held legally responsible for the deaths of two teenage brothers who took an after-hours toboggan run down an Olympic luge-bobsled track, says a liability lawyer.
Peter Collins said the fact that twins Jordan and Evan Caldwell, 17, were former employees at Canada Olympic Park makes it especially improbable that site operator WinSport would be held liable for the incident.
"An owner of property who invites people on has a general obligation to make the property safe," Collins said on Sunday. "But that general obligation and liability doesn't extend in the same way to trespassers."
The Caldwell brothers were killed and six other teenage boys injured — one critically — after their sled crashed into a gate separating the luge and bobsled tracks early Saturday.
The twin brothers had worked as "Hill Ambassadors" at the facility last winter.
It's likely they would have been familiar with security protocols and known how to evade measures used to keep people off the track, Collins said.
He described the incident as tragic but said the presence of fencing and security patrols means WinSport likely took the appropriate security steps.
Jordan Caldwell, left, and Evan Caldwell are seen in an undated handout photo. The 17-year-old twin brothers died in an incident at WinSport on Saturday, Feb. 6, 2016. Six others were injured during an after-hours visit to the Calgary luge-bobsled track early Saturday.
Image Credit: THE CANADIAN PRESS/HO-Calgary Police Service
Occupiers' liability law in Alberta provides little protection for trespassers but does require owners to secure their property if it poses a danger to a child.
"It's one thing for an eight-year-old child to see a water slide connect to a swimming pool. If you've got some teenagers, especially older teenagers, who have very specifically worked at the facility, it would be hard to say that they didn't appreciate the risk," Collins said.
WinSport's argument that the boys were trespassers is "not necessarily a slam-dunk defence," said liability lawyer Scott Cozens, from Calgary.
It's difficult to say for certain that WinSport wouldn't be found responsible without knowing all the facts, he said.
"You can be negligent if somebody drowns in your swimming pool even if you didn't let them in, even though you had a fence around it," he said.
Lawyer Cozens noted that even if the company knew staff sneaked into the facility and did nothing to stop it, "that doesn't necessarily mean it's an invitation for all and sundry to break into the premises and use it."
WinSport President and CEO Barry Heck responded to questioning from reporters on Saturday about how easy it is to access the sliding track, saying "robust security measures" are employed to keep people out. An investigation will ultimately reveal how the teenagers were able to gain entry, he added.
When asked about accounts from alleged former staff of a tradition of being reckless after hours and going down chutes, Heck said he had no knowledge of such instances.
News from © The Canadian Press, 2016