Tailgate Parties and the Assumption of a Duty Through Surveillance

November 7, 2015

Negligence

By Callan MacKinlay – Thompson Rivers University 2L JD Student
Tailgate Parties are becoming more and more common at sporting events, especially with regards to American football in the United States. Some of the teams regard this behaviour as free advertising and do not prohibit the parties from continuing all night long on their property. While this issue is not nearly as common in Canada, it does occur often in certain jurisdictions. The Calgary Stampeders (a professional football in Canada) are a team that has a tailgate party at almost every game. In the past, the team has had issues with the parties and has since stepped up efforts to ensure that the parties are carried out in a safe manner in accordance with the law. The question that needs to be asked here is: do these efforts constitute the assumption of a duty with regards to tort law?

Negligence law is the most obvious area where a duty may arise. According to reports, the Calgary Stampeders have a surveillance system that they use to monitor the state of the tailgate parties. Specifically, they watch for overtly drunk individuals or rowdy behaviour that might escalate into violence or a danger to the other party-goers. If they notice this sort of behaviour, they either notify security or they inform the police. The Stampeders have also set up regulations that essentially create a reasonableness standard for the fans, stating that tailgating is allowed, so long as the “fans use discretion and common sense.”

With these regulations and the surveillance in mind, have the Stampeders created a duty where there was none before? That is, knowing that there is a danger that the fans might become rowdy or overly drunk, doesn’t regulating and surveilling the behaviour create a duty under negligence law? I would say that it does.

In Mercer v SE & C Railway Company, the defendants had created a duty by locking a gate to block pedestrians from crossing the rail when a train was passing. When they failed to lock it in one instance and someone was injured, they were held to have created a duty because the community relied on their previous behaviour.

In the modern instance of tailgating, what if someone manages to slip under the radar of the surveilling authority at McMahon stadium and leaves the tailgate party inebriated and crashes their car into someone, injuring them? What would stop that person from including the Stampeders in a negligence lawsuit? It is likely that the Stampeders would rely on their regulations as set out in their tailgating page on their website as evidence that they assume no liability, but their actions speak much more loudly than their words. What is the difference between someone relying on their surveillance as proof of the safety of the conduct and someone relying on the gate being unlocked meaning that no train was coming? It would make for an interesting case.

In short, while tailgate parties might be a way to increase word of mouth and fan fervour for your team, it creates additional legal problems that have to be mitigated either by strict surveillance and regulation or by outright prohibition. What each team does in the future will lead to different risks inherent with taking on any new duty.

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