The latter point was illustrated in the Supreme Court of Canada decision, MacLeod v. Roe, in which the plaintiff sued the operator of a roller skating rink in negligence after her roller skate came off while she was skating, which caused her to fall and injure herself.
Product liability claims related to defective sporting equipment rented out by ski hill operators have not been frequently litigated in Canada. As such, this can be regarded as a fairly minor source of liability for ski hill operators. Issues that have proven to be far more litigious are the failure of the duty to warn and the failure of the duty of care to the patrons of the ski hill.
As a result, the majority of Canadian case law on the liability of ski hills for providing equipment has primarily focused on whether the accident was caused by a defect in the equipment or by some other action, such as the typical dangers and inherent risks that befall skiers, snowboarders, and tubers.
Liability: Sporting Equipment
When ski hill operators are involved in sporting equipment product liability litigation, it is typically alleged that they have either: negligently supplied equipment;2 and/or negligently selected and fitted the equipment.3
As suppliers, product liability claims against ski hill operators may consist of:
a duty to inspect the product if they are aware of a potential for issues with the product;4
a failure to warn of dangers, defects, and hazards known to the supplier that are associated with the product or its use;5
recommending a product, either not in accordance with the manufacturer's recommendation, that later injures a customer;6 and
using misleading advertising.7
However, the typical situation that ski hills face involving liability for their equipment is the duty to inspect.
Duty to Inspect
A ski hill operator must inspect equipment they supply and/or select and fit. However, as a supplier of equipment, the ski hill operator is only liable if they knew or ought to have known about a defect in the equipment or if they knew or ought to have known that there was the potential for issues with the supplied product.
However, if the ski hill operator supplied rental equipment to the plaintiff, then the ski hill operator could be held liable for a defect in the equipment. Typical defects in rental ski equipment are defective ski bindings and early or late release.8 Claims have also been brought for defective ski jump air bags,9 as well as for defective snow tubes.10
In Hough v. Amer Sports Canada Inc., the plaintiff, an inexperienced skier, suffered an injury while skiing due to early release of his ski bindings. He sued the manufacturer of his skis and bindings and the sporting goods store that sold and installed the equipment. A motion was brought by the defendant for an order permitting further testing and inspection of the subject ski binding. While originally unsuccessful, the defendant succeeded in having the order granted upon appeal.
Once it has been established that the ski hill operator provided the equipment, the plaintiff must successfully demonstrate that there actually was a defect in the equipment, and that the defect caused the plaintiff's injuries. However, most claimants are typically unable to prove that the equipment was defective and further, that the equipment, defective or not, caused the plaintiff's injuries.
Proof of Defect
In typical product liability cases, the plaintiff rarely has enough evidence to prove that a defect existed when the product left the factory.11 Instead, circumstantial evidence can be used to establish the existence of a defect at the material time.12 In order for the plaintiff to be successful, they must show they have not misused the product and that the product simply failed in its normal use.13 As set out in Stewart v. Chrysler Can. Ltd.,14 where a product is open to interference from various parties over a long period of time, it will be more difficult to prove a manufacturing defect.15
The average claimant for defective rental sports equipment will also argue that the supplier is liable for failing to fit the equipment according to industry standards. In MacLeod v. Roe, the Supreme Court of Canada held that the defendant must show:
- the defendant was not negligent in that they acted in accordance with general and approved practice in supplying, selecting, and fitting the equipment; and
- that the equipment supplied, selected, and fitted was not defective.
The standard is not that the equipment could be made safer.16
When evidence suggests that the cause of the accident was from a mechanical failure or a defective product, testing or mechanical examination of the product in question may be required to prove that a defect or failure actually took place. In Hough, the plaintiff argued that one of his bindings unexpectedly and suddenly released, thereby causing him to crash. When the initial testing of the binding revealed that there might have been an internal mechanical failure, further testing was recommended. The court held that if there is a reasonable possibility that the proposed testing is likely to reveal something that will assist in determining an issue in the proceeding, then a mechanical examination of the binding is required in order to resolve the issue of whether the product was defective.17
In cases where there is a defect but the plaintiff's injury is contributed to by his or her own misuse of the product, apportionment of liability may be appropriate.18
Causation
Generally speaking, in order to recover for injuries stemming from a defective product, a plaintiff will have to show not only that the product was actually defective, but that the injury was caused by the defect.19 In order to prove causation, a plaintiff must prove, on a balance of probabilities, that but for the negligent act of the defendant, the injury would not have occurred.20
The general principle of liability for sporting equipment is that a purchaser or lessee of an item of sporting equipment, such as a helmet or skis and ski bindings, may bring an action against the supplier where the injury is caused by an unfit or unsuitable product.21 In Dunsmore v. Deshield, both the supplier and manufacturer of glass lenses were found to be jointly and severally liable when a plaintiff collided with another player in touch football and broke his glasses, resulting in injury to his right eye. The lenses were held out to be Hardex lenses but were found not to be so by the Court.
Although the operator of a sports event or facility is under a duty to exercise reasonable care in organizing and supervising activities so as to prevent injury to participants, the participant is also deemed to accept the ordinary and necessary risks that are incidental to the sport by participating in the sport.22 It is much more unlikely that a plaintiff will successfully prove that the operator was negligent in selecting and fitting proper and suitable equipment; the standard is simply industry standards, not making the equipment safer.23
In Milina v. Bartsch,24 the plaintiff was rendered quadriplegic after performing an acrobatic stunt at a ski show. The plaintiff alleged that the ramp and air bag had been improperly and negligently assembled and that the equipment provided was unsuitable.25 The court held that despite possible over-inflation of the air bag or elevation of the ramp, neither of them nor a combination of the two was the effective cause of the plaintiff's injuries. The trial judge stated that the risk associated with the defendant's use of the ramp in the elevated position and the landing air bag led to a risk lower than that routinely encountered and accepted by acrobatic skiers in outdoor competitions. Given these circumstances, the trial judge held, and the appellate court confirmed, that the equipment was not inadequate or unsuitable. Rather, the injury most likely would have occurred regardless of the elevation of the ramp or the zipper setting on the air bag.
Even if the equipment provided by a ski hill operator is functionally sound, if the ski hill operator fails to discharge its duty of care to its patrons, the ski hill may still be held liable. For instance, in Crocker v. Sundance Northwest Resorts, Ltd.,26 the defendant ski hill operator was held liable for failing to take positive steps to prevent the visibly intoxicated plaintiff from competing in its tubing competition and not, as initially alleged, for failing to warn of the dangers of using a tube and tube racing.
Conclusion
Overall, sporting activities which have been recognized as involving certain inherent risks, may sometimes result in accidents. When a plaintiff voluntarily undertakes to partake in these activities, they assume a certain amount of risk, regardless of the care taken by the ski hill operators. Although the ski hill operator's liability is limited in terms of the equipment they may supply, they will likely be liable for injuries sustained if the plaintiff can prove that the equipment was both defective and caused the plaintiff's injury.
Despite the foregoing, the case law seems to indicate that it is not always the equipment provided by ski hill operators that causes injuries in such high-risk sports. Instead, plaintiffs usually sustain injuries due to errors in their own performance.27 Thus, the outcome of product liability claims for defective rental sports equipment will depend on the individual facts of the case, and therefore, on whether or not the operator was negligent, or the equipment was defective. Finally, given the costs associated with caring for those with serious injuries resulting from high-risk sports, injured persons will likely continue to seek compensation from any source possible, including operators of ski hills.
1 MacLeod v. Roe, [1947] SCR 420, 3 DLR 241. ["MacLeod"].
2 Good-Wear Treaders Ltd. v. D&B Holdings Ltd., [1979] 8 CCLT 87 (NSCA), ["Good-Wear"].
3 Supra note 1.
4 Dunsmore v. Deshield, [1977] 80 DLR (3d) 386 (Sask. Q.B.), ["Dunsmore"].
5 Supra note 2.
6 Shanklin Pier v. Detel Products, [1951] 2 KB 854, 2 All ER 471, ["Shanklin Pier"].
7 Leitz v. Saskatoon Drug & Stationary Co. [1980] 112 DLR (3d) 106 (Sask. Q.B.), ["Leitz"].
8 Hough v. Amer Sports Canada Inc., 2012 ONSC 4281, [" Hough"].
9 Milina v. Bartsch, (1987) 49 BCLR (2d) 99, 6 ACWS (3d) 233 (BCCA), ["Milina"].
10 Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186, 64 OR (2d) 64, 29 OAC 1, 51 DLR (4th) 321, ["Crocker"].
11 Smith v. Inglis Ltd., 25 NSR (2d) 38, 83 DLR (3d) 215, 36 APR 38 (NSCA) ["Smith"], in Waddams (below) (at p.65).
12 S.M. Waddams, Products Liability, (Toronto, Carswell: Thomson Reuters), 5th Edition at p 65 ["Waddams"],.
13 Grant v. Australian Knitting Mills, [1936] AC 86 (PC), ["Grant"], in Lawrence G. Theall et al., Product Liability: Canadian Law and Practice, (Toronto: Canada Law Book, 2012), ["Theall et al"].
14 Stewart v. Chrysler Can, Ltd., (1975), 13 N.B.R. (2d) 53 (Q.B.).
15 Supra note 18, Waddams at p.71.
16 Supra note 1 in MacLeod, at para 3.
17 Supra note 13 in Hough at para. 20.
18 Supra note 18, Waddams at p.82.
19 Rothwell v. Raes, [1991] 1 SCR xiii, SCCA No 58, 2 OR (3d) xii, 49 OAC 398, in Waddams (supra note 18).
20 Supra note 19, in Theall et al at L7-1.
21 Supra note 5 in Dunsmore.
22 Supra note 1 in MacLeod.
23 Ibid at para 3.
24 Supra note 1 in Milina.
25 Ibid in Milina at para 7.
26 Supra note 16.
27 Supra note 9 in Milina, at para 6.
