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Articles and Publications

November 2015

Passing the Buck: Risks Willingly Assumed and Liability Apportionment at Resorts

David Olevson
David J. Olevson,
Associate

Bogdan Miscevic
Bogdan Miscevic,
Associate

By1 David J. Olevson, and Bogdan Miscevic
First presented at a Sports Liability Seminar

In the winter months, many Canadians travel to resorts nationwide to engage in snow-related activities such as skiing, inner-tubing, and snowmobiling. After a day of physical activity, many retreat to a restaurant or a bar often conveniently located on, and operated by, the resort. Although these activities are intended to be an exciting pastime, there are inherent and serious risks for all parties involved. As such, it is necessary that resorts be aware of methods to limit their exposure to liability, in the event that a patron becomes injured on resort premises.

Historically, Canadian courts have held that patrons could voluntarily assume all risks associated with their ski-related activities. Unfortunately, courts have recently moved away from this position and no longer accept that patrons are the sole authors of their own misfortune. As it will be illustrated, jurisprudence in Ontario has identified a move away from the voluntary assumption of risk doctrine to a less defence-friendly approach of findings of contributory negligence.

This paper will set out the common law defences available to a resort, its owners, and its insurers, when a patron is injured on their premises. Secondly, it will explore and discuss aspects of tavern liability and its application to resorts. Finally, this paper will provide several recommendations that resorts can enact to assist in limiting their exposure to liability.

Defences to Resort Liability

The inherent risks involved in recreational activities, such as skiing, give rise to countless personal injury claims each year. Managing the exposure to such claims is a key concern for ski resorts. As illustrated below, courts have limited the ways in which resorts can escape liability.

(a) Voluntary Assumption of Risk

The doctrine of voluntary assumption of risk, or volenti non fit injuria, is a defence based on the concept that no wrong can be done to one who consents.2 In such cases, a plaintiff who agrees to assume all the inherent risks involved with an activity absolves the defendant of the responsibility for injuries arising from the activities.3 In other words, the defendant would not be liable to a plaintiff for the injuries the plaintiff has suffered resulting from risks they agreed to assume. Because this doctrine is a complete bar to recovery, its scope has been limited by the courts: it only applies where a "plaintiff [assumed] both the physical and legal risk involved in an activity".4 In Nettleship v Weston, a 1971 English Court of Appeal case, Lord Denning, M.R., stated:5

Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately, due to the failure of the defendant to measure up to standard of care that the law requires of him [or her].

The plaintiff must have also consented to the risk and must have waived his or her legal rights arising from the risk...

Following the decision of the English Court of Appeal, the Ontario Court of Appeal has also held that mere knowledge of the risks of an activity is insufficient to trigger this defence.6 The plaintiff must have also consented to the risk and must have waived his or her legal rights arising from the risk, including the right to sue for injuries. The voluntary assumption of risk could arise "either by express agreement or it [could] be implied from the conduct of the parties".7 The English case of Morris v Murray8 is one in which the defence of volenti non fit injuria was successfully applied. In that case the plaintiff and the defendant were drinking alcohol together and decided to then take a flight in the defendant's light aircraft. The plaintiff not only drove to the aircraft but also helped refuel and start it so that the defendant could fly it.

Shortly after take-off the plane crashed, killing the defendant and seriously injuring the plaintiff. The volenti non fit injuria defence was successfully used by the defendant pilot in this case. The English Court of Appeal held that by accepting a ride in the aircraft from his intoxicated friend, the plaintiff had voluntarily assumed the risks and waived his right to damages.

The volenti non fit injuria doctrine is especially significant in sports or other recreational activities that involve purposive risk taking. In order for the defence to be accepted, the premises owner must clearly establish that the patron turned his or her mind “to the question of liability.”9 Since it would be difficult to establish implied consent of a party, service providers frequently rely on explicit waivers of liability, which may be included on tickets, signs or standard form contracts.10

It is important to note that section 4(1) of the Occupiers` Liability Act excludes the duty of care that occupiers of a property owe to their guests who willingly assume the risks, which later lead or contribute to the guests' injuries. The Supreme Court of Canada has held that section 4(1) embodies the common law volenti doctrine.11 Section 4 lists circumstances in which a plaintiff would be deemed to have willingly assumed the risks which resulted in his or her injuries. For example, section 4(2) states that a person who is on the premises and intends to commit, or is in the process of committing, a criminal act, is deemed to have willingly assumed all the risks which later lead to his or her injuries. Also, according to sections 4(3) and 4(4) of the Act, recreational trails where entry is for the purpose of recreational activity and i) no fee is paid for entry on the activity by the person and ii) person is not being provided with living accommodation by the occupier, that person is deemed to have willingly assumed the risks which later result in, or contribute to, that person's injuries.

...courts are more inclined to accept a claim of contributory negligence, which results in an apportionment of liability against the plaintiff and a corresponding decrease in damages awarded.

Despite this codification, the voluntary assumption of risk defence is largely unavailable to protect ski resorts from liability. Instead, courts are more inclined to accept a claim of contributory negligence, which results in an apportionment of liability against the plaintiff and a corresponding decrease in damages awarded. It is important to note that although the “voluntary assumption of risk” doctrine has been eliminated in the tort context, the existence of waivers in a contractual context continues to allow the defendant an avenue to defeat the plaintiff's claim in its entirety.

(b) Contributory Negligence

Since Canadian courts shifted away from accepting the complete defence of volenti, resort owners, occupiers and managers are faced with difficulty in attributing complete liability onto plaintiffs. As such, resorts increasingly rely on the doctrine of contributory negligence in cases where a patron engages in unreasonable conduct, which contributes to his or her injuries. For example, in Siwick v Dagmar Resorts Ltd, 12 the court found that the plaintiff engaged in unreasonable conduct when he attempted aerial stunts on a makeshift jump at the side of a ski slope and found the plaintiff 30% liable. In Crocker v Sundance,13 the court found that the plaintiff's excessive intoxication while engaging in an inner-tubing competition was considered unreasonable. The plaintiff in Crocker was found 25% contributorily negligent.

If the claim of contributory negligence is accepted, a court will apportion fault amongst the parties based on the “degree to which [each party] departed from the relevant standard of care.”14 The transition away from volenti and toward contributory negligence demonstrates the view that resorts may be exposed to liability — even if the plaintiff is largely to blame — and must take an active role in protecting their interests.

According to section 5 of the Occupiers' Liability Act15, ski resorts can restrict or exclude the duty of care owed to patrons by way of a contract commonly known as a waiver agreement. By signing this agreement, patrons assume some legal risk for their action that may have otherwise been borne by the resort. As such, courts will take the terms of these contracts into consideration when apportioning liability.

In Cejvan v Blue Mountain Resorts Ltd, the patron descended a groomed ski hill and saw what he thought was a natural jump. As he approached the mound at high speed, he saw three exposed steel pipes sticking out vertically from the ground. In his attempt to avoid the pipes, the patron sustained injuries. The resort had made use of exclusion of liability wording, which the court found was sufficiently brought to the attention of the plaintiff. The court found that there were “Exclusion of Liability” signs on the wall where the plaintiff purchased his lift tickets. In addition, an exclusion of liability clause was printed at the reverse side of the plaintiff's ski tickets. Further, there were signs close to the ski lift which reminded the patrons regarding the resorts exclusion of liability policy. Despite the exclusion of liability wording, the defendant was found 20% liable because an “employee knowingly and intentionally failed to clear a hydrant pad of snow”16 and thus increased the risk of injury. The court found the plaintiff to be 80% contributorily negligent as he approached an isolated and unknown mound of snow.

As seen above, despite the unavailability of the volenti defence, resorts are able to rely on the plaintiff's own contributory negligence in limiting their liability. Significantly, however, courts have found contributory negligence on behalf of resorts, despite the presence of exclusion of liability agreements. In other words, the mere presence of a waiver may not completely absolve the resort of liability if there is evidence of negligence on behalf of the resort.

Tavern Liability and Its Application to Resorts

In Ontario, taverns and other commercial hosts that serve alcohol face liability if they over-serve alcohol to a patron who subsequently causes and/or sustains injuries or other damages. Since most ski resorts are licensed to serve alcoholic beverages on their premises, they are considered commercial hosts and thus are subject to certain statutory requirements. Under section 29 of the Liquor Control Act, commercial hosts in possession of a liquor licence have the responsibility to not sell or provide alcohol to any person appearing to be intoxicated.17 Furthermore, if a third party is injured by the actions of a person who becomes intoxicated or more intoxicated at the premises of a commercial host, section 39 of the Act allows the injured party to recover damages from that commercial host.18

The court has held that commercial hosts owe a duty of care at common law to their patrons who appear intoxicated. The Supreme Court of Canada established this duty of care in the seminal decision of Menow v Honsberger.19 In that case, the patron, Menow, went to the Jordan House Hotel where he proceeded to get very intoxicated. He was later ejected from the bar for his unruly behaviour, and then proceeded to walk home alone along a highway where he was struck by a vehicle. The court held that the hotel, knowing that Menow was intoxicated, had a duty to ensure that he made it home safely by placing him in the company of a responsible person, or keeping him on the premises until he was reasonably fit to look after himself.20 The hotel owed Menow a duty to not over-serve him alcohol and to protect him from the danger of foreseeable injury or harm.

Resorts also owe a duty of care to patrons that have been over-served alcohol at licensed establishments on the resort. Similar to Menow, an alcohol-serving resort has established a relationship of an invitor-invitee with their patrons. As such, the resort will owe the duty to intoxicated patrons to prevent them from becoming further intoxicated and from causing foreseeable injury either to themselves or to others.

Occupier`s Liability

The above cases have all considered liability when the resort is the owner of the tavern serving alcohol to its patrons. In these circumstances, issues may also arise when a patron arrives inebriated at the resort. The resort may still be liable under the more encompassing laws of Ontario's Occupiers' Liability Act.21

As previously stated, resorts have relied on releases of liability and contractual waivers to protect themselves from liability in personal injury cases. However, it is not simply enough for the resort to require its patrons to sign a release or a waiver. The ski resort must fulfill a number of criteria to establish that the release of liability is valid.

One of the criteria for validity is to ensure that the signatory is aware of the terms he or she is consenting to.

One of the criteria for validity is to ensure that the signatory is aware of the terms he or she is consenting to. In Crocker v Sundance, the inebriated patron had signed a waiver of liability before participating in the tubing race. Nevertheless, the Supreme Court of Canada held that the intoxicated patron who agreed to engage in a dangerous tube race did not voluntarily assume the risk of that activity. He had believed that the waiver was merely an entry form for the race. The court found that the defendant in that case failed to draw the patron's attention either to the waiver or to the conditions contained within it. Therefore, it could not have absolved the resort of liability.22 However, the patron was found to have been contributorily negligent as a result of his inebriated state. The attribution of 75% contributory negligence to the ski resort in Crocker v Sundance reflects the courts' shift towards a plaintiff friendly approach to the apportionment of liability.

This is not to say that ski resorts will be held liable in circumstances where the resort has taken all necessary precautions to protect the patron. The 2015 case of Trimmeliti v Blue Mountain Resorts Ltd. gives an example of a situation where a resort has been found to have not been negligent in a claim for damages arising from a ski accident.23

In Trimmeliti, a patron who was, by his own admission, an intermediate level skier engaged in night skiing at Blue Mountain Resort. He entered a trail that was closed off and fractured his collarbone after colliding with an orange fluorescent tape used to mark the trail as closed.24 The patron had purchased a season pass to Blue Mountain Resort and had executed a “Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement.”25

Blue Mountain Resort moved for a summary judgment, claiming that the injury was not attributable in any manner to the resort.

The Ontario Superior Court first considered whether the resort had been negligent in failing to properly signify that the path where the injury occurred was closed. Based on the evidence, the court found that the fluorescent orange tape marking the closure was visible enough from a reasonable distance such that a skier keeping a proper lookout should have noticed that the trail was closed.26 As the resort had fulfilled its positive duty to the patron to warn of inherent dangers and risks, the resort was not negligent and the action was dismissed.

The court, however, also examined the validity of the waiver signed by the patron, and found that it too provided the resort with a full defence to the patron's claim. The court noted that the title of the document alone should have alerted the patron to the nature of the terms contained within it. The waiver featured bolded warning language that was framed by a bright yellow background. The court found that it would have been impossible for any literate person to read the waiver and not be aware of the nature of document he or she was signing.27

The waiver also contained an explicit assumption of risk clause.28 The court found that the patron, who had admitted to skiing at Blue Mountain Resort in previous years, knew or ought to have known of the waiver of liability. Moreover, the court held that even if the patron had not read the agreement before signing it, his prior experience would have made it reasonable for him to expect that the language would be similar to what he had previously read or seen while skiing at Blue Mountain Resort.29

Recent Developments

...a patron attempted to use the Consumer Protection Act to void a waiver of liability.

Even though robust waivers have provided some protection to resorts, plaintiffs are becoming increasingly creative in finding ways to attribute liability to the resort. In the 2015 case of Woodhouse v Snow Valley30, a patron attempted to use the Consumer Protection Act31 to void a waiver of liability.

The plaintiff had purchased a beginner's ski package, including equipment rental, a lesson, and a lift ticket. As was standard practice, she had signed a rental agreement and a release of liability form which included a waiver clause. Additionally, the wording on the lift ticket contained an exclusion of liability and assumption of risk clause. She then allegedly suffered injuries while using the ski lift, and claimed the injuries were due to the negligent operation of the lift.32

The resort, in its pleadings, relied on the liability form and the waiver to shield itself from liability. However, the patron argued that, regardless of the waiver's existence, her substantive rights were protected under section 9(1) of the Consumer Protection Act.33 Section 9(1) states that “the supplier of services is deemed to warrant that the services supplied under a consumer agreement are reasonably acceptable quality.”34

Furthermore, the Consumer Protection Act also states that the rights protected under it apply despite any agreement to the contrary. The patron argued that the resort could not rely on the terms of the release of liability as they were contrary to the provisions of the Consumer Protection Act.35

Ultimately, Justice Vallee of the Ontario Superior Court held that the application of the Consumer Protection Act to a contract between a skier and a ski resort was novel and thus had to proceed to trial.36 It will be important to follow this case and determine how it resolves as it may reveal yet another method in which a resort may be open to liability for injuries incurred by their patrons. If the court finds that the Consumer Protection Act protects plaintiffs from waivers of liability, it may signal a more pronounced shift to the ideology of the ski resort acting as a brother's keeper for its patrons.

Commercial Hosts and Ski Resort Taverns

It is a well-established common practice that commercial host liability be limited to 15%.37 First, in Mellanby v Chapple, the defendant commercial host was found to be 15% liable for the injuries that the plaintiff sustained after he was engaged in a bar fight at Muskoka Sands Resort. Second, in D'Entremont v Smallwood, after a night of excessive drinking at a bar, the defendant caused a head-on collision with another vehicle which ultimately resulted in his death and significant injuries to the other driver. The tavern was found to be 15% liable for the defendant's damages. Third, in Dryden (Litigation Guardian of) v Campbell Estate, after the underage defendant, who was visibly intoxicated, entered the bar, he was served numerous alcoholic drinks. Later on that same night the defendant caused a motor vehicle accident. Despite serving the underage defendant numerous drinks, throwing him out of the bar, having him described by security personnel as “drunk and angry” and doing nothing to prevent him from operating a vehicle while intoxicated, the bar was found to be 15% liable. Finally, in Holton v MacKinnon, the defendant was drinking at two establishments and later on caused a motor vehicle accident. In this case, the court apportioned 15% of liability to each of the drinking establishments. Therefore, it appears to be a common practice that commercial host liability be usually limited to 15%.

Having established that the current commercial host liability is typically limited to 15%, this raises the question of whether ski resorts should be afforded the same percentage liability cap if patrons are injured on the resort premises or after they leave. Ski resorts should not be treated differently than their commercial host counterparts. For instance, both establishments are governed by the Liquor Licence Act; both are exposed to similar situations in which intoxicated patrons might inflict damages on other individuals and/or property; and both establishments' employees are required to monitor the alcohol intake of their patrons. Ski resorts may therefore argue that their bars should be afforded the same allocation of liability as other drinking establishments, which is usually 15%.

Conclusion

If intoxicated patrons are injured as a result of a ski resort's negligence and litigation is commenced, ski resorts should argue that they are subject to the commonly accepted 15% liability cap. In the words of U.S. Supreme Court Justice Lewis Powell, “it is fundamental that justice should be the same, in substance and availability”.

Given the court's transition away from the voluntary assumption of risk doctrine, patrons are no longer considered the authors of their own misfortune. As such, ski resorts are encouraged to take a proactive approach in reducing the potential for injuries and damages on their premises. Pursuant to the Occupiers` Liability Act, resorts maintain the right to limit their exposure to liability via exclusionary clauses and waiver agreements. Resorts should continue to have each patron sign a well-worded waiver or release form. Where it is not appropriate to sign such waivers, such as in the resort's bar or tavern area, the resort should have a system to monitor alcohol consumption, and protocols in place to ensure that all intoxicated patrons do not engage in any snow-related activities where there is inherent risk. The continued development of the “waiver defence” is intriguing and is an area that will be closely monitored moving forward.


1 The authors would like to thank Victoria Mitrova and Marla Rosenblatt-Worth, summer students, for their contribution.
2 Crocker v Sundance Northwest Resorts Ltd, [1988] 1 SCR 1186 at para 31, 51 DLR (4th) 321.
3 Ibid.
4 Waldick v Malcolm, [1001] 2 SCR 456, 3 OR (3d) 471.
5 Nettleship v Weston, 1971 ER 581, [1971] 3 WLR 370.
6 City of Sarnia v Shepley, [1969] 2 OR 42, 4 DLR (3d) 315 (ON CA).
7 Jean Louis & Allen M Linden, Tort Law in Canada, 2d ed (New York: Wolters Kluwer) at 210.
8 [1990] EWCA Civ 10, [1991] 2 QB 6, [1990] 3 All ER 801.
9 Joe v Paradis, 2008 BCCA 57, 290 DLR (4th) 556.
10 Supra note 7.
11 Supra note 4 at para 40.
12 [1996] 66 ACWS (3d) 1017, 95 OAC 188 (ON CA).
13 Crocker, supra note 2.
14 Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, [1997] 3 SCR 1210, 153 DLR (4th) 385.
15 RSO 1990, c O2.
16 Cejvan v Blue Mountain Resorts Ltd, 2008 CarswellOnt 9269, [2008] OJ No 5442 at para 53.
17 RSO 1990, c L 19, s 29.
18 RSO 1990, c L 19, s 39(2).
19 [1974] SCR 239, 38 DLR (3d) 105.
20 Ibid.
21 RSO 1990, c O2, ss 3(1), 3(3), 4(1), and 5(1).
22 Supra note 2 at para 34.
23 2015 ONSC 2301, 254 ACWS (3d) 243.
24 Ibid at para 1.
25 Ibid at para 66.
26 Ibid at paras 63-64.
27 Ibid at paras 66-68.
28 Ibid at para 70.
29 Ibid at paras 73-76.
30 2015 ONSC 2802, 253 ACWS(3d) 572 [Woodhouse].
31 SO 2002, c 30, Sched A [Consumer Protection Act].
32 Woodhouse, supra note 30 at para 1.
33 Ibid at para 2.
34 Consumer Protection Act, supra note 31 at s 9(1).
35 Woodhouse, supra note 30 at para 2.
36 Ibid at para 10.
37 Mellanby v Chapple, [1995] OJ No 1299; D'Entremont v Smallwood, 1999 93 ACWS (3d) 393, [1999] OJ No 4567; Dryden (Litigation Guardian of) v Campbell Estate, 103 ACWS (3d) 1070, 11 MVR (4th) 247; Holton v MacKinnon, [2005] BCSC 41, [2005] B.C.W.L.D. 1939..


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