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March 3, 2011

Ski Resort Liability

James Tomlinson
James Tomlinson,
Partner

By Jim Tomlinson
First presented at a Sports Liability Seminar

Introduction

The inherent risks of active sports such as skiing give rise to a large number of personal injury claims each year. Managing the risk posed by such claims is a key concern of ski resorts. Ski resorts have developed a number of important and evolving legal strategies to limit their exposure to such claims. These strategies have evolved with the changes in the law over time and continue to grow with it.

Today, the traditional defence of ‘voluntarily assumption of risk’ has, for practical purposes, been abandoned in favour of the defence of contributory negligence. Moreover, ski resorts have adapted tools such as signed releases and waivers, and more recently, printed limitations provisions on lift tickets and signage, in order to further reduce their liability exposure. These strategies and the practical issues they raise are discussed below.

Voluntary Assumption of Risk

The defence of ‘voluntary assumption of risk’ or volenti non fit injuria (to a willing person, no injury is done) is a complete bar to a plaintiff’s claim and fully exonerates a defendant who succeeds in establishing it.

To be successful in asserting the defence of voluntary assumption of risk a defendant must show two things:

  1. A bargain between the plaintiff and the defendant by which the plaintiff gave up his or her right to sue with full knowledge of the nature and extent of the risk;

  2. That the plaintiff either expressly, or by implication, agreed to absolve the defendant from all liability arising from the activity.

While this doctrine historically provided comfort to potential defendants, including ski resorts, the fact that the defence can entirely eliminate a plaintiff’s claim has led the courts to significantly narrow the circumstances in which the defence is available. For practical purposes it is now largely unavailable to ski resorts in personal injury actions. In its stead, defendants generally ask the court to consider the defence of contributory negligence, which the courts are more willing to consider. However, this defence is only as a partial defence and will not entirely defeat a plaintiff’s claim.

Signed Waiver Agreements

In response to the limitations of the defence of voluntary assumption of risk and of contributory negligence, ski resorts began to rely upon contractual waivers and releases. These contractual agreements can serve as a full defence to a claim in tort.1 However, the particular facts of each case are still relevant to the ability of a defendant to rely on such clauses.

The statutory authority that allows an occupier to rely on contractual waivers and releases is set out in the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the”Act”). The Act provides that an occupier can restrict or exclude his or her duty of care by way of a contract with the person to whom the duty is owed. The Act further provides that the occupier’s duty of care does not apply in respect of risks willingly assumed by the person entering the premises.2

The test for whether signed releases of liability are valid was set out in the Ontario decision of Isildar v. Rideau Diving Supply 2008 CanLII 29598 (ON S.C.).3 In Isildar, the plaintiff died while participating in a scuba diving course. His widow and son brought a claim for damages against the diving company. The deceased signed a release from liability form prior to making the dive.

Isildar does not arise from factual circumstances involving ski hills or ski resorts. Nonetheless, the court set out a test of general applicability with respect to the issue of signed releases.

In Isildar, the court held that a three stage analysis is required to determine whether a signed release of liability is valid. The analysis requires a consideration of the following:

  1. Is the release valid in the sense that the plaintiff knew what he was signing? Alternatively, if the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to the liability release it contains, did the party presenting the document take reasonable steps to bring it to the attention of the signator?

  2. What is the scope of the release and is it worded broadly enough to cover the conduct of the defendant? That is, does the agreement contemplate the type of negligence that occurs, and is it reasonable and clear?4

  3. Whether the waiver should not be enforced because it is unconscionable?5

In order for a defendant to rely on a liability waiver or release it is required to draw the waiver, in whatever form, to the attention of the plaintiff, before it is signed. Once the plaintiff has been made aware of the existence of the waiver, the defendant is not required to ensure that the plaintiff read the terms of the agreement or that she understood them.6 That said, there are three exceptions to the general rule that a party is bound by a document she has signed.7

Initially, a common problem for ski resorts was the ability of a plaintiff to argue that they had not read the exclusion of liability clause or that it was not brought to their attention. For example, in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, the Supreme Court of Canada was faced with a plaintiff who was rendered a quadriplegic after participating in a tube race on a ski resort. The plaintiff was obviously intoxicated while participating in the race and the defendant resort took no steps to prevent the plaintiff from participating. The defendant relied on the liability waiver signed by the plaintiff at the start of the race. The court rejected the defendant’s reliance on the waiver because the existence of the waiver and its conditions were not brought to the attention of the plaintiff at the time of signing. The plaintiff was under the impression that he was merely signing an entry form for the race. The Supreme Court of Canada concluded that the plaintiff could not have agreed to absolve the defendant of all liability without any knowledge of such onerous terms.8

The key question is whether the ski resort has an obligation to bring the terms of a signed release to the plaintiff’s attention. That is, does a ski resort have a duty to take reasonable steps to bring an exclusion clause to the attention of the signator?

The high water mark in release cases can be found in Karroll v. Silver Star [1988] B.C.J. No. 2266 (B.C.S.C.), decided by Chief Justice McLachlin (C.J., B.C.S.C. as she was then).9 In Karroll, the court found that the duty to take reasonable steps is of limited applicability, required only in “special circumstances”. The court acknowledged the general principle of contract law that where a party signs a document which he knows affects his legal rights, the party is bound by the document even though the party may not have read or understood the document.

The court in Karroll set out a non-exhaustive list of factors that are indicative of “special circumstances” that give rise to a duty to take reasonable steps.10 Where those factors do not exist, there is no duty on the ski resort to take reasonable steps to bring the waiver to the plaintiff’s attention and the plaintiff is deemed to have understood the terms of the waiver.

In Karroll, the plaintiff signed a release as part of a ski race knowing that it was a legal document affecting her rights. The signing of a release was found to be a common feature of ski races and it was also found that the plaintiff had signed similar releases on prior occasions.

In reaching its decision the court ultimately held that it was irrelevant whether the plaintiff had read or understood the release prior to signing it, where the plaintiff had signed a similar release on previous occasions. The court also held that it was not incumbent on the ski resort to bring the contents of the release to the plaintiff’s attention or ensure that they fully read it.

Another case favourable to the defendant ski resorts in Blomberg v. Blackcomb Skiing Enterprises Ltd., 1992 CanLII 191 (BC S.C.). In that case a waiver signed by the plaintiff at the time of season ticket purchase was found sufficient to exonerate the ski resort. The waiver was found to be both broad in scope and short in length. It was found to be clear and legible with the word negligence stated in bold letters. The plaintiff was also found to be an educated and experienced skier. It was further found that the resort staff pointed out to the skier that the document signed was a waiver affecting the plaintiff’s legal rights. The court noted that the plaintiff would have knowledge that the waiver would affect his right to sue.

Waivers or Releases Printed on Tickets or Posted on Signs

As recreational activities at ski resorts continue to rise in popularity, it may be the case that having each potential plaintiff sign an agreement and having staff take the further step of individually drawing the terms of the waiver or release to a potential plaintiff’s attention is not always practical. Ski resorts now often attempt to rely upon terms or conditions printed upon the face or reverse of a lift ticket and on signage displayed prominently in the ski area.

Though less desirable than a signed release or waiver, the courts have found such releases or waivers sufficient where the defendant resort is able to demonstrate that they took all reasonable steps to bring the contractual terms regarding the exclusion of liability to the patron’s attention. This has become known as the “reasonable step test”.

The courts have examined the issue of whether the “reasonable steps test” is objective or subjective. In Argiros v. Whistler and Blackcomb Mountain, [2002] O.J. No. 3916 (S.C.J.), the Ontario Superior Court explicitly stated that the determination is objective. In that case the court held the defendant had taken reasonable measures to alert the plaintiff to exclusionary language by posting colourful signs on their premises and highlighting the relevant provisions on the plaintiff’s ticket.

This was held despite the fact that the Court accepted the plaintiff’s contention that no one directed his attention to the back of the tickets and vouchers containing the terms of the exclusionary language. The Court also accepted that no one explained these conditions to him. However, the court stated that these arguments were not relevant since the test of “reasonable steps test” was objective. As with a signed release, once the defendant had taken reasonable steps to alert the plaintiff to exclusionary language, the plaintiff was bound by the terms of the exclusion whether he choose to read them or not.

The court’s analysis and ultimate decision as to whether reasonable steps have been taken are very much tied to the particular facts of a given case. For instance, the courts will look for the printing of the terms on the lift ticket and the positing of bright coloured signs displaying the terms of the liability waiver throughout the premises.11 If the court is not satisfied that the patron would have seen the wording, the defendant will not be able to rely on the release. 12

In Cejvan v. Blue Mountain Resorts Ltd. 2008 CarswellOnt 9269, (S.C.J) the Court held that the fact that a waiver was printed on the back of a ticket, rather than in the form of a signed waiver, did not undermine its effect, even if only written on the reverse of the ticket. In making this finding, the court reasoned that a plaintiff must actually look at the reverse of their ticket because of the fine motor skills required to tear the ticket from the wax paper and affix it to the holder. This action, in conjunction with clear, legible and visible signs throughout the premises was found to amount to sufficient notice of the terms of the liability exclusion to the patrons.13

The location of any signs is also important, as the courts require evidence that the plaintiff had reasonable opportunity to see any signs. For example, in McQuary v. Big White Ski Resort Ltd.,14 [1993] B.C.J. No. 1956 (S.C.) (“McQuary”) the plaintiff was using a multi-day lift pass purchased several days before the accident. The lift pass contained a comprehensive exclusion of liability clause, but the plaintiff denied having read the clause on the ticket and did not recall seeing signs posted adjacent to the ticket window which mirrored the exclusion clauses on the ticket.

However, the court in McQuary upheld the waiver provision on the back of the lift ticket. It looked at the drafting, design, and colour of the tickets and of the signs at the resort. It agreed with the defendant that reasonable steps had been taken to alert the plaintiff to the exclusionary language. There was also a finding that the plaintiff had a reasonable opportunity to read the waiver clauses and was not rushed by the ski resort. The court ultimately found that the defendant ski resort had succeeded in bringing the waiver provisions to the plaintiff’s attention.

By contrast, in Greeven v. Blackcomb Skiing Enterprises, 1994 CanLII 2252 (BC S.C.) the defendant was not successful. The evidence about the placement of the signs was found to be too vague and the plaintiff’s lift ticket was found to contain no colour and no large print. Further, the plaintiff was not familiar with the Canadian ski industry and it was her first time at the resort. Based on these findings the defendant’s motion to dismiss the claim was denied.

With respect to signage, the courts will look at the wording, the nature, extent and location of the signs employed as well as the potential plaintiff’s familiarity with the premises. The court will look at the steps taken by the defendant in placing signs located throughout the premises, including at the ticket booth, equipment rental locations, near or on lifts, and along trails.

The courts, including the Ontario court, have also found that sufficient notice has been made to patrons where the signs remind the patrons to read the liability waivers on their lift tickets.15

Summary Judgment Motions

Given that the applicability of signed releases and waivers acts as a full defence, a ski resort may seek to expediently defeat a plaintiff’s claim by bringing a summary judgment motion.15

This issue was discussed in the Ontario decision of Brown v. Blue Mountain Resort Ltd., 2002 CanLII 7591 (ON S.C.)16. In Brown, the defendant ski resort sought to dismiss the plaintiffs’ claim and brought a summary judgment motion pursuant to Rule 20.01(3). The defendants argued that the plaintiffs agreed to a complete and total waiver of any claim of liability prior to entering onto the ski areas.

In accordance with the test applied in summary judgment motions, the court was required to determine if a “real and genuine issue for trial” existed. The court held that “the plaintiff provided adequate preliminary evidence and argument to show that there is a real issue to be tried... the issues of negligence and the waivers of liability are matters to be determined at trial”.

It is important to note that the “reasonable steps test” discussed in Argiros was seemingly met in this case. The court in Brown found that a) the daily ski ticket issued to the skier contained explicit waiver wording, b) the ticket offices prominently displayed a notice on a big red sign advising skiers to read the exclusion of liability on the ticket and c) the notice sign itself contained waiver wording including waivers against “negligence”, inter alia.

Despite these findings, the extent to which waivers and/or signs constituted an exclusion of liability was an issue to be determined at trial.

However, the decision in Brown was rendered prior to the January 2010 amendments to Rule 20 of the Rules of Civil Procedure. Those amendments now permit a judge to weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence. It would be interesting to see how a court in Ontario would decide a case similar to Brown, now that the amendments have been made to Rule 20.

Conclusion

The inherent risks of certain activities such as skiing demand the attention of potential defendants whose operations involve potentially dangerous activities. As detailed above, ski resorts have a number of protective measures available to them to limit their exposure to personal injury claims. Securing a signed and well-worded waiver or release from every potential plaintiff is clearly the best practice. However, where doing so is impractical, a system providing clear well-worded notice to potential plaintiffs through bold and highly visible wording provided on signs and tickets can suffice. The key is ensuring that there is a system in place which renders notice of such terms unavoidable by all potential plaintiffs.


1 Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186. [Crocker].
2 Occupiers' Liability Act, R.S.O. 1990, c. O.2, ss. 3(1), 3(3) , 4(1), and 5(1)
3 Isildar v. Rideau Diving Supply, 2008 CanLII 29598 (ON S.C.). [Isildar]
4 Dyck v. Man Snowmobile Assn. Inc., [1985] 1 S.C.R. 589 at para. 8 & 9
5 Supra, note 7, para. 634
6 Karroll v. Silver Star [1988] B.C.J. No. 2266 (B.C.S.C.) [Karoll].
7 (1) where the document is signed by the plaintiff in circumstances which made it not his or her act (non est factum); (2) where the agreement has been induced by fraud or misrepresentation; and (3) where the party seeking to enforce the document knew or had reason to know of the other's mistake as to its terms.
8 Crocker at para 36.
9 Cited with approval in Isildar
10 Those factors include: a) the effect of the exclusion clause in relation to the nature of the contract. If the exclusion clause runs contrary to the party's normal expectations it is fair to assume that he does not intend to be bound by the term. b) the length and format of the contract c) the time available for reading and understanding it.
11 Union Steamship Ltd. v. Barnes, [1956] S.C.R. 842 and Cejvan v. Blue Mountain Resort Ltd., 2008 CarswellOnt 9269 (Ont. Sup. Ct) at paras 58-67. [Cejvan].
12 Champion v. Ski Marmot Basin, 2005 CarswellAtla 977 at paras 17-18. [Champion].
13 Cejvan at para 59, 60.
14 Champion at para 63.
15 Pursuant to Rule 20.01(3) of the Rules of Civil Procedure, a defendant may, after delivering a statement of defence, move with supporting material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim
16 Brown v. Blue Mountain Resort Ltd. (2002) CanLII 7591 (ON S.C.), [Brown]

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