Occupier’s liability in British Columbia imposes a duty on occupiers to take reasonable care that users of their premises are reasonably safe. This duty of care can be limited and excluded by an occupier in certain circumstances such as through releases and waivers of liability which are often required as a condition of participating in an activity. Releases and waivers of liability are commonly used by occupiers such as ski hills, amusement parks, water parks and sporting events.
For years, ski resorts in particular have successfully avoided responsibility (liability) for accidents by relying on releases and waivers of liability (also known as “Ski Waivers”) which eliminate the legal rights of skiers and snowboarders to sue the ski resort and its employees for injury suffered on the mountain. For more information on cases where Ski Waivers have resulted in a full dismissal of a personal injury claim, please see this past blog post.
What is concerning is that Ski Waivers are so broadly worded that they allow a ski hill to avoid liability for its own negligence and the negligence of its employees. In other words, even if the ski hill or its employees were negligent and created a dangerous situation which caused injury to a skier, the skier would not have the right to sue because of the Ski Waiver.
What is also concerning is that Ski Waivers have been found enforceable even if the ski hill does not expressly bring it to the skier or snowboarder’s attention and even if there is no explanation of its terms. There are numerous cases which have upheld the validity of Ski Waivers that are in small difficult to read print on day tickets and season’s tickets, as well as on signage posted on the ski hill.
In this case, a 20 year-old snowboarder suffered serious injuries rendering him a quadriplegic on Grouse Mountain when snowboarding on the XL Jump. In the lawsuit against Grouse Mountain, it was alleged that the design, construction, maintenance and inspection of the jump was flawed and unsafe which increased the risk of injury.
Prior to the accident, the injured snowboarder had purchased a season’s ticket at Whistler Mountain which included a Ski Waiver and he was hired to work at the Whistler rental shop in which part of his job was to obtain customer’s signatures for these Ski Waivers. He did not read the Ski Waiver in either circumstance, although he was aware that it was a release of liability affecting the legal rights of the skiers and snowboarders.
At the time of the Accident, the injured snowboarder purchased a day lift ticket from Grouse Mountain which included a Ski Waiver in small print on the back that he was not required to sign. There was furthermore signage on the mountain which outlined the Ski Waiver. The injured snowboarder stated that he did not read either the Ski Waiver on the back of his ticket or on the signage.
The insurance company for Grouse Mountain vigorously defended the lawsuit arguing that the Ski Waiver shielded it from liability even if the XL jump was negligently constructed and posed a dangerous risk to users. The Supreme Court of BC trial judge agreed with Grouse Mountain and dismissed the claim on the basis that the injured snowboarder ought to have been aware of the Ski Waiver on his ticket and on signage. The trial judge furthermore concluded that he ought to have been aware of the Ski Waiver since he worked at Whistler and purchased a season’s ticket with a similarly worded waiver.
The injured snowboarder appealed the dismissal of his claim to the Court of Appeal. The Court of Appeal overturned the trial judge’s decision and made two (2) significant rulings.
First, the Court of Appeal ruled that the trial judge made an error in concluding that the injured snowboarder had sufficient prior notice of the Ski Waiver when it was “buried in a difficult-to-read section, among colons and semicolons, with no attempt to highlight it or emphasize it in any way” on the ticket and on signage. The Court of Appeal also clarified that there were insufficient steps taken by Grouse Mountain to notify the injured snowboarder of the Ski Waiver before or at the time he purchased his ticket. Any steps taken by Grouse Mountain to notify users of the mountain after a ticket is purchased was noted to be insufficient to establish that reasonable notice was given.
Second, the Court of Appeal ruled that the trial judge made an error in concluding that the injured snowboarder’s season pass at Whistler and his experience in working at the rental shop provided him with sufficient prior notice and knowledge of the Ski Waiver of Grouse Mountain. It was determined that actual knowledge of Whistler’s Ski Waiver was not proven and that, even if the injured snowboarder had actual knowledge of it, this actual knowledge cannot be be transferred to apply to Grouse Mountain or other mountains.
This Court of Appeal decision established the injured snowboarder’s right to sue Grouse Mountain for his injuries, it did not make any conclusions that Grouse Mountain was at fault or negligent. That issue will be decided at a later date likely by way of a full trial.
This is a very welcomed decision to the legal community and to injured claimants who have been prevented from suing for injuries caused by a ski resort’s own negligence. If you have been injured in a ski or snowboarding accident, you may have a valid claim because of this decision. To learn more about your legal rights, we invite you to contact us for a free initial consultation.