Waxing your board: Liability on the slopes
This past winter has been one of the best in recent memory for snow conditions on the local mountains. While out enjoying sunny days, blue skies and fresh powder, few people have ever taken a break to read the ne print found on the back of a lift-ticket. You might be surprised to learn just how far reaching the effect of that fine print can be.
This is the law of waiver and what is commonly referred to as the “ticket defence”. The Courts have consistently upheld this as a complete defence in order to strike out the claims of injured people. These types of cases are becoming increasingly more common given the growing popularity of such adventure sports as mountain biking, bungee jumping and zip-lining.
In one case, an experienced skier signed a release when she obtained her ski pass. She was subsequently injured when she was run over while trying to get onto the chairlift, resulting in a dislocated hip. e allegation was that the employee had been negligent in not stopping the chairlift. e Court ruled that the skier had signed a release with clear wording, which released the ski hill from any liability. As a result, she had no claim for damages. As she had signed the document, it was not necessary to prove that she had actually read it.
Moreover, while you might expect that a contract releasing someone from liability would be signed, the Courts have ruled that a signature is not necessary. In these cases the consent of the party is based on ‘notice’. It is for this reason that there is wording on lift tickets and other posted signs at ski hills is in bold underlined capitals, or highlighted, so that the operator can argue skiers are on notice.
However, this fine print is not a blank cheque for operators to carry on their activities without any regard to safety. In some cases, the Courts will still find liability where there is “gross negligence”. One can often read between the lines in these cases that the Courts are concerned about fairness and an abuse of power by the person drafting the waiver.
In one instance, which made its way up to the Supreme Court of Canada, a visibly intoxicated person entered a competition on a ski hill to race over-sized inner-tubes. He made it through the first heat, su ering a cut over his eye, but was then seriously injured in the second heat. The Supreme Court of Canada ruled that the promoter of a dangerous sport owed a duty of care to take all reasonable steps to prevent him from participating in the sport when it was aware that he was visibly intoxicated. The Court ruled that the waiver in that case had not been brought to his attention.
Nonetheless, the ticket defences are successful in often surprising circumstances. One recent example that made its way up to the British Columbia Court of Appeal involved two people colliding on a zip line. While one person was stuck on the line, the tour operator negligently placed a second person on the zip line, leading to a collision between them, resulting in serious injuries. In that case, the Court of Appeal ruled that the release was enforceable and the claim for damages was therefore dismissed.
As with any legal claim, there may be strict time limitations at play within which a person must act or be barred from bringing forward a claim. You should consult a lawyer for specific legal advice.
This is all to say take care out there, and keep your edges sharp!