Judge denied damages because of inherent hiking risks. But he did say province’s data collection on potentially dangerous trees was lacking
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Michelle Hlatky and her mother were enjoying a sunny hike on a recreational trail on Vancouver Island when Hlatky heard a thump and felt something graze her arm. She said to her mom, who was behind her, “That was close.”
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She then discovered with horror that the branch that had barely touched her was part of a tree that had landed on her mother, injuring her head and leg.
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Hlatky, a nurse, did everything she could to save her mother, but Monica Marklinger, an active, vibrant, athletic 57-year-old who loved skiing, travelling and adventure, died of her injuries.
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Sunrise
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Her death in 2018, caused by the sudden root collapse of a large alder tree in the area of the Ripple Rock trail near Campbell River left her husband, Ross Marklinger, Hlatky, Monica’s other daughter, Alison, two grandchildren and many other family members and friends grieving.
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It also left them with many questions about how well the province was living up to its responsibility to monitor and remove, if necessary, any trees on forested trails.
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They filed a lawsuit in B.C. Supreme Court, alleging the province “fell below the standard of care that they owed to Ms. Marklinger to maintain the trail in a safe condition from the danger of falling trees by not assessing and maintaining the trail” and documenting its procedures.
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In a recent judgment, Justice Gibb-Carsley dismissed the family’s claim and request for damages, finding that hikers accept risks when they walk through B.C.’s woods, but wrote he was “troubled” by the lack of data collected on the condition of the trees on that trail.
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He wrote that the lawsuit didn’t establish that the province’s actions amounted to reckless disregard for Monica’s safety or a breach of the standard of care they owed to her under the law.
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But “there was merit in their claim” because rather than being driven by a monetary award, they were looking for accountability for the conditions they believed caused Monica’s death and were looking to improve how trails are maintained, he said.
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“I accept the testimony of Mr. Marklinger that he had a genuine concern for the safety of future users of the Ripple Rock Trail,” he wrote. “I am troubled by the fact that there was almost a complete dearth of documentation regarding the assessments of the trail.
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“I would expect a more-robust danger-tree mitigation strategy” rather than just visual observations.
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The judge said the named defendants, the province and its Forestry and Tourism ministries, “should ensure that proper records are kept.”
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The Ripple Rock trail is an eight-kilometre round-trip that would take about three hours to complete, and it had signs warning users of high winds, slippery rocks, steep cliffs, forest fires, bears, cougars, ticks and other wildlife, but not of falling trees, according to the judgment.
