EDITOR'S NOTE: Spec readers have made this story from the archives popular again because of recent outrage in Hamilton over sledding bans. Catch up to the recent toboganning news here.



Bruno Uggenti busted his spine after tobogganing down a steep slope at an estimated 31 km/h and hitting the "hidden hazard" of a snow-covered drainage ditch, sending him airborne.

It was on city property where tobogganing is banned.

But Hamilton taxpayers are now legally on the hook for more than $900,000 because the city failed to properly warn Uggenti about the dangers.

On Monday, superior court Justice R. A. Lococo dismissed the city's appeal of an arbitrated decision that found the city fully liable for the serious injuries suffered by Uggenti while tobogganing at the Garth Street Reservoir on the west Mountain.

The case went to arbitration in 2012 after city council refused to ratify a mediated settlement which would have capped all damages and costs at $425,000.

Instead, the city now has to pay $482,657 in damages and losses to Uggenti, $100,000 to his former wife, Patricia, $258,790 in court costs and related expenses, plus interest and other disbursements.

Uggenti, a 48-year-old Hamilton lawyer, declined to comment on the decision or the accident, which took place in January, 2004.

But his lawyer, Helen Pelton, says the drawn-out legal process has been both disappointing and painful for her client.

"Obviously the injuries themselves are difficult enough to deal with, but having to deal with this prolonged litigation process has compounded his pain."

City solicitor Janice Atwood-Petkovski says she can't comment on why the city didn't accept the cheaper mediated settlement because it's confidential.

It's now up to council to decide whether it wants to kick the case up to the Court of Appeal for Ontario.

Uggenti spent 10 days in hospital with a fractured vertebra and months recuperating at home. Patricia, his then wife, sled companion and city employee, suffered minor injuries but was awarded damages for housekeeping, child care, and postaccident deterioration of their marital relationship.

In assessing damages, the arbitrator, Eugene Fedak, a retired superior court justice, heard medical evidence the accident caused Uggenti ongoing chronic pain, depression and post traumatic stress.

Fedak, however, didn't find that the injuries led to Uggenti's claims of problems with retinal detachment, erectile dysfunction, testosterone deficiency, or the breakdown of his marriage.

The city had "no tobogganing" signs in the area and a bylaw prohibits the activity at the site.

But Uggenti argued the city had a duty to warn people about the man-made ditch and to fence off the area.

Fedak heard the city was concerned about the steep slope and had erected a fence to prevent tobogganing. The fence, however, was destroyed by vandals over time and the city chose not to replace it.

He also found the "no tobogganing" signs were few and far between, with none in the immediate area of the accident. In addition, the city didn't enforce the bylaw.

"It was the policy of the city that prosecutions would be cost prohibitive," Fedak noted.

The city argued that by choosing to toboggan, Uggenti voluntary assumed all risks of injury and, because of a previous toboggan accident he had in 2000, should have known to keep his eyes open for hazards.

But based on the evidence, Fedak decided the city was in breach of its duty under provisions of the Occupiers Liability Act, which requires property owners to take reasonable care to ensure people on their premises are safe.

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The lawsuit didn't go to trial because both parties agreed to binding arbitration after city council rejected a proposed mediated settlement.

Fedak gave his decision May 1, 2012. The city unsuccessfully appealed the arbitration award on questions of law, including that Fedak erred by finding no contributory negligence on the part of the Uggentis.

Meanwhile, Atwood-Petkovski says steps have been taken to mitigate future lawsuits by posting more signs and increased staff monitoring at the reservoir. Cold comfort for Uggenti and taxpayers alike.