The inherent risks of skiing, legally speaking

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A skier in Revelstoke powder. Photo: Abby Cooper/Revelstoke Mountaineer file photo

It’s been in the local news in Revelstoke lately that Revelstoke Mountain Resort (“RMR”) is being sued by an injured skier and the Province of Alberta over an incident that occurred in December of 2013. The skier claims that he sustained injuries after crashing into a drainage ditch. The skier and the Province of Alberta allege that RMR failed to properly mitigate the hazard created by the ditch.

These types of law suits are not uncommon in the ski industry. Skiing and snowboarding are sports that carry inherent risks; whether you’re dropping cliffs or simply riding the magic carpet, there are plenty of opportunities to break bones, tear ligaments, or worse. To a certain extent, you are responsible for engaging in a sport that carries risks, but at what point does the ski resort become responsible for your injury? That question has been explored by the courts a number of times, and the results are varied.

You’ve surely seen the brightly coloured waiver on the back of your ski ticket, or had to initial particular boxes when you purchased a season’s pass or rented gear. In big, bright, bold letters the resort will exclude itself from liability by saying something like, “As a condition of the use of the ski area and other facilities, the ticket holder assumes responsibility…” Some resorts even display the waiver in bathrooms or on large signs at lift lines. Whether or not that effectively waives the resort’s liability is a question that has been explored in the courts with mixed results, which is why many ski resorts go to great lengths to make their waivers clearly visible. Just because you don’t sign it, doesn’t mean it’s not binding.

In a case against Big White (McQuary v Big White [1993] BCJ No 1956), a skier claimed that he had not read the back of his ski ticket and did not see the posted signs containing the language of the waiver. The court found that he had ample opportunity to read the ticket and that the resort had done a sufficient job of bringing the waiver to the skier’s attention. However, in a case involving Blackcomb Mountain (Greeven v Blackcomb [1994] CanLII 2252) the waiver on the ticket did not have large print or colours to attract the reader’s attention. The judge found that the skier was not familiar with the Canadian ski industry, and would not have been well acquainted with the idea of the waiver and the risks of skiing. The waiver did not protect Blackcomb. Generally, however, the waiver on the ticket will be sufficient to protect the resort from being sued for the standard risks of skiing.

Cases involving minors are slightly different, however. Anyone under 19 in B.C. is considered an infant and cannot give a binding waiver of the right to sue, and whatever a parent or guardian signs will have no effect in that regard. So while ski hill waivers will likely negate an adult’s right to sue, they won’t have the same effect for a child.

It’s not just waivers that are fraught with difficulty; how employees conduct themselves on the mountain can create problems for resorts. In a case involving Manning Park (Taylor v R 1980 CanLII 408), a young skier was hit by another skier coming over a knoll at speed. She had fallen just after the lip in a blind spot, and was in a lesson at the time. The BC Court of Appeal found that the instructor had been negligent in allowing the skiers to pause in a dangerous spot, overturning the trial judge’s finding that the instructor had acted reasonably. In Roumanis v Mt Washington (1995 CanLII 763), a ski instructor successfully defended herself, as it was found that she had conducted her lesson in a reasonable way, and that the skier was injured as part of the inherent risk of the sport, not the instructor’s negligence.  The questions the court will consider in determining whether or not the instructor is liable are whether the lesson was properly given and in suitable terrain, and ultimately whether the skier was exposed to unreasonable risk.

Skiers are responsible for skiing “in control”. Of course that is a subjective determination, but in a Hudson Bay Mountain Case (Feniuk v Board of School Trustees of School District No 54 (1991 CanLII 646), the skier’s inability to maneuver properly when she approached an obstacle was a deciding factor in her case. She failed in her action, as she had approached a known blind corner without proper precaution.

Every resort takes steps to alert their guests of the risks associated with the sport, but there are situations in which a resort or its employees could be found liable. If a lift operator fails to properly operate their lifts, for example, or a ski instructor encourages dangerous behaviour from their students, the resort could be responsible for injuries. However, if you plead ignorance or ski dangerously, you’re unlikely to succeed against a resort – particularly if you’re an experienced skier and knowledgeable of the inherent risks in skiing.