It’s St. John’s Day and you and your family go out to watch the show. You decide to stay to watch the fireworks and the moment your eyes are fixed on the sky you receive a spark on your head that causes you a burn.
Do you have recourse against the municipality or company responsible for the fireworks show? Will it be possible to claim damages? If so, what are your chances of success?
In this capsule, Me Lambert answers these questions by explaining the remedies available to you using legislation and case law examples.
Recourse for civil liability
Indeed, it is possible to bring a civil liability action in order to obtain compensation for the damage suffered during an accident involving fireworks. In general, in order to succeed in such a remedy, the plaintiff must show that he or she suffered harm and that the harm was caused by the fault of the fireworks keeper.
However, the law provides for a presumption of fault where the damage was caused by the autonomous fact of property; that is, by its own dynamism, without there having been any human intervention. It then becomes optional to prove that a fault was committed by the defendant.
On the contrary, it will be the latter who will have to prove her absence of fault if she wishes to be exempted. Those responsible for fireworks will also not be held liable if they demonstrate that the damage is attributable to the fault of a third party or the victim himself or to a foreign event such as force majeure.
Absence of fault
The guardian can prove that he did not commit any fault when using the fireworks in order to release himself from his responsibility. However, it is difficult to prove this convincingly.
Indeed, in a decision, the Court of Quebec emphasized that spectators attending fireworks have the right to have a safe environment. Those responsible must therefore take all possible precautions to avoid foreseeable accidents. Not only must they have acted diligently, according to the standards and rules of the art during the preparation of the show, but they must also prove that they were unable to prevent the accident at the time it occurred.
Lack of a third party and force majeure
It often happens that the organizers of pyrotechnic shows try to release themselves from their responsibility by invoking the fault of a third party or more rarely, of a force majeure.
This was the case in a case that occurred on June 23, the day before Quebec’s National Day. The next day, the applicant found fireworks residue on his property and noticed that they had punctured his canopy. A lawsuit was then filed against the municipality which, the day before, was organizing celebrations for Saint John’s Day. However, the Court of Québec decided that it was impossible to associate the damage suffered by the plaintiff with the city’s liability since this evening is an annual opportunity for many citizens to use fireworks sticks; it is therefore difficult to determine the real culprit.
Acceptance of risk
It also happens that the defendant tries to obtain a share of responsibility or an exoneration by arguing that the victims had accepted the risks associated with the fireworks show. According to this thesis, it would therefore be up to the spectator to assume all or part of the damage incurred during the presentation of fireworks.
This argument was dismantled by the Court of Quebec in a case where a spectator received a burning stick from a fireworks display on her left arm causing her a second-degree burn and a fracture. The pyrotechnic company defended itself by arguing that it was written on the ticket that the holder had to assume responsibility for accidents that might occur during the show. However, this clause was illegible to the naked eye. In addition, the evidence showed that the accident was caused by the negligence of the pyrotechnic team. Despite the possibility of inherent risk, the Court recalled that a spectator is entitled to expect rational security measures and that a failure to do so does not represent an inherent risk to which the victim consents.
For more information on the theory of risk acceptance during recreational activities, do not hesitate to consult our article dedicated to this subject.
Sharing of responsibility
When attending a fireworks show, it is important to respect the rules and safety instructions put in place by the organizers in order to avoid a sharing of responsibility in the event of an accident. This may include staying in your assigned place on the ticket or not violating the security perimeter determined by those in charge.
If you have any further questions about this article, do not hesitate to contact our firm for more information.