In the realm of thrill-seeking, it is hard to imagine anything better than a towering rollercoaster or a plunging water slide. However, behind the screams of exhilaration amidst the twists and turns of roller coasters and the splashes of water slides, the question of legal liability looms large. Amusement parks and water parks are popular around the world, including in Canada. In 2022 alone, Canada’s revenue from amusement parks and arcades reached a record high of CA$996.5 million, approximately half of which was generated in Ontario.[1] This figure is bound to increase with upcoming plans for development of Ontario Place—a CA$500 million spa in Toronto, which will feature a water park.
At Dentons, we have particular expertise in amusement ride matters, including manufacturer and operator liability both pre and post incident. This Dentons insight explores best practices for players in the amusement ride industry, including warnings, waivers of liability and dispute resolution.
Overview of legal landscape
The American Society for Testing and Materials (ASTM) has established global standards for the manufacture, operation and maintenance of amusement rides. For example, ASTM F2291-24 establishes criteria for the design of amusement rides, while ASTM F2376-22 provides a standard specific to the design, manufacture, construction and operation of water slide systems. Many ASTM standards exist, making it important for manufacturers and operators to be aware of the standard applicable to their particular amusement devices.
Local standards are also relevant. In Ontario, for example, manufacturers are liable for design defects and have a common law duty to warn. Under the Occupier’s Liability Act, all occupiers (i.e., operators) have a duty to ensure that all patrons are reasonably safe while visiting park premises.[2] This duty does not require operators to take “unrealistic or impractical precautions against known risks,” nor to protect against every possible danger.[3] In other words, the standard is not perfection.[4]
Similarly, under the Technical Standards and Safety Act,[5] each operator must hold a valid Amusement Devices Operating Licence, which expires every year;[6] and each amusement device – which includes cart rides, cable rides and water slides – must have a current and valid permit.[7] To obtain a permit, several pieces of information must be filed, including a technical dossier.[8] Any amusement device can also be inspected at intervals determined by the Technical Standards and Safety Authority.[9]
Duty to warn
Manufacturers and operators each have their own respective obligations to warn of risks associated with operating or riding amusement devices. When it comes to water slides, for example, manufacturers have an obligation to determine the recommended warning, weight limits, dispatch procedures, water flow rate requirements, and inspection and maintenance requirements, among other obligations. In turn, operators must establish written operating procedures that specify information provided by the manufacturer, including dispatch procedures. The operator is also required to post signage reflecting the manufacturer’s recommendations, including safety, rider instructions, weight limits and warnings, among other things.
The question then becomes: how do manufacturers and operators ensure they meet their respective obligations to warn of the risks associated with operating/riding an amusement ride? The answer to this question is fact-specific, but in assessing a warning to consumers (i.e. riders) courts and arbitral tribunals will likely consider: (i) whether the risk was known or reasonably should have been known to the manufacturer/operator; (ii) whether the risk was communicated to the rider in the form of a warning; and (iii) whether the warning was expressed in a manner that allowed the rider to reasonably understand the extent of the risk involved.
In Ontario, the failure to warn patrons of inherent risks can lead to findings of negligence, as seen in Bhatt v William Beasley Enterprises Limited, where the Court awarded damages in relation to a child’s injury suffered while attempting to board a ride at an amusement park in Toronto.[10] The Court found that the operator amusement park failed to uphold its duty as an occupier because:
- there was no visible sign informing patrons that the ride in question never came to a full stop when patrons were boarding;
- there was no verbal warning from the operator employee that the ride would not fully stop;
- the operator employee failed to inquire whether the child and his father needed assistance boarding or if they required the ride to slow down; and
- there were insufficient operator employees at the time of the accident to fully instruct and protect customers.[11]
Similarly, in Hutchison v Daredevil Park Inc. (Hutchison),[12] the Ontario Superior Court of Justice found the defendant waterpark failed to meet the duty of care when its employee failed to correct the plaintiff’s entry into a water slide on at least two occasions prior to the accident. The Court further found that the absence of a sign and warning on the ride also demonstrated the waterpark’s failure to take reasonable care, given that it was reasonable to contemplate an employee might fail to instruct a customer how to enter the slide.[13]
With this backdrop in mind, it is important that manufacturers discharge their duty to provide operators with the information they reasonably require to properly warn riders, typically in the ride’s purchase agreement and/or operator’s manual. Operators have the reciprocal duty to communicate the warning clearly, including by erecting appropriate signage and ensuring employees receive diligent training, particularly with respect to dispatch procedures.
Waivers of liability
In typical course, waivers of liability between manufacturers and operators are viewed as commercial terms, interpreted and enforced pursuant to the law governing the contract. Waivers as between operators and consumers (i.e. riders) require particular attention, however, given the nature of the relationship between them.
In Ontario, valid waivers[14] are generally enforceable against consumers (i.e. riders) as long as the waiver’s terms are: (i) specifically brought to the rider’s attention; and (ii) drafted so the reasonable consumer can understand how the waiver alters or negates their rights. Accordingly, operators cannot simply rely on the general commercial terms applicable in business to business transactions—consumer waivers must be drafted with particular care.
Dispute resolution
In this increasingly globalized sector of the economy, disputes between manufacturers and operators often include business entities from different jurisdictions. In such cases, parties can avoid the complex and costly process of determining the appropriate forum to commence a dispute (i.e. before the courts of the manufacturer’s or operator’s jurisdiction) by including an arbitration agreement in their contract or agreeing to arbitrate once a dispute arises. Since agreeing to arbitrate is often challenging after a dispute arises, parties should consider this option proactively at the time of the contract’s execution.
Arbitration is attractive for parties from different jurisdictions seeking to resolve disputes efficiently and confidentially. This means of dispute resolution can protect the parties’ confidential and proprietary information from exposure in the public realm and results in a final arbitration award that (depending on the seat of arbitration and the location of the losing party’s assets) is enforceable in over 170 countries around the world.
Additionally, parties can rest assured that generally speaking, arbitrators have the power to order on site inspections, including ride testing, regardless of the ride’s location. Dentons has extensive experience in securing this relief, which is critical where an amusement ride is alleged to have design defects.
Conclusion
Dentons is at the forefront of advising manufacturers and operators of their respective duties and strategies to mitigate risk. We have vast experience drafting arbitration agreements, warnings, and waivers of liability as between commercial parties and in the consumer context. We also regularly advise on signage for amusement rides in Ontario and beyond, including dry slides, water slides and other amusement devices.
With a proven track record of success in litigating and arbitrating product liability claims involving highly engineered recreational products such as aircraft, carbon fibre bicycles and water rides, Dentons’ ability to understand your business needs and the highly technical engineering behind recreational devices is unmatched. We stand at the ready to represent manufacturers and operators in such matters with a view to resolving the dispute and getting them back to doing what they do best—providing safe and fun experiences for riders worldwide.
For more information on this topic and how we can help your business, please contact the authors, Fraser Mackinnon Blair or Emily McMurtry. The authors would like to thank Olivia Graham, an articling student in the Ottawa office, for her substantial contribution to this insight.
[1] Statistics Canada, “Roller coaster ride continues at amusement parks and arcades” (May 8, 2024).
[2] R.S.O. 1990, c. O.2, section 3(1).
[3] Lyng v Ontario Place Corporation, 2024 ONCA 23, para 25, citing Waldick v Malcolm, [1991] 2 S.C.R. 456 at pp. 470-72 (Waldick).
[4] Ibid.
[5] S.O. 2000, c.16 (the TSSA).
[6] Technical Standards Safety Authority, “Apply for an Initial Licence – Amusement Devices”.
[7] O. Reg 221/01 – Amusement Devices, ss 1, 4(1) (Amusement Devices).
[8] Technical Standards Safety Authority, “File a Technical Dossier”.
[9] Amusement Devices, supra note 12, s 16. Regulations under the TSSA also require operators and attendants to possess knowledge, training and experience to be aware of possible hazards, and ensure safe operation. In the case of any incident involving any amusement device which requires an injured party to seek medical attention, licence holders have notification and reporting obligations (See, Amusement Devices, supra note 7, s 17).
[10] 2015 ONSC 2168.
[11] Ibid, paras 110, 113, 116, 129, 135.
[12] 2003 CarswellOnt 1480, [2003] O.J. No. 1570, paras 10-11, 18.
[13] Ibid, paras 10-11, 18.
[14] Meaning the waiver is not void for issues like fraud, capacity, unconscionability, etc.
