Skiing can be a fun and exhilarating outdoor activity, but despite taking all safety precautions, the worst can happen. Injuries can happen even to an experienced skier who is alert to the common risks and dangers of the slopes.
What Should I Do If I Sustain an Injury on the Slopes?
- Get a copy of the accident report. This report is typically filled out by the ski resort or the ski patrol employees.
- Get the names and contact information of the people involved and any witnesses.
- Take good quality photographs or video-recordings. Document more than just the site of impact. Ensure that you get visuals of the weather conditions and your surrounding area. Document your route leading up to the accident, and include noteworthy signs and markings. It is critical that you are able to document the condition of the slopes or facilities as close in time to your accident as possible, as these may become part of the evidence for your case.
- Keep written records. Keep any forms you had to sign in order to get your season pass or lift ticket. These forms may include waivers and limitations of liability, which may affect a potential lawsuit. You should keep receipts and contracts. The ski resort’s routine operational records – for example, logs on the state of various runs and lifts – may be useful.
- Write down your recollection of the incident. Lawsuits take time. It will help both you and your potential lawsuit if you had prepared a written account of the accident while the details were still fresh in your memory.
I Signed a Waiver. Can I Still Sue the Ski Resort?
Ski resorts are well aware that there are inherent risks associated with an active outdoor winter sport such as skiing. To limit their liability exposure, ski resorts use tools such as signed waivers and limitation of liability clauses printed on lift tickets, season passes, and signage posted around the ski area facilities.
Under the Occupiers’ Liability Act in Ontario, ski resorts are allowed to restrict, modify or exclude their duty to ensure that people entering their premises are reasonably safe.[1] The Act also provides that this duty does not apply with regard to the “risks willingly assumed” by those entering the premises, and that in such cases, there is only a duty to not create a deliberately harmful danger and to not act with reckless disregard.[2]
The Courts have been willing to allow ski resorts to rely on contractual waivers and releases to restrict or exclude their duty of care. In Crocker v. Sundance Northwest Resorts Ltd, the Supreme Court confirmed that a contractual waiver clause can serve as a full defence to a claim in tort if the injured plaintiff signed the waiver in full knowledge of the waiver’s intention to exempt the defendant from liability. [3]
In Crocker, the plaintiff was visibly intoxicated during a “tubing” race, and the defendant ski resort did not take steps to prevent him from participating in the dangerous competition. The ski resort attempted to rely on the waiver signed by the quadriplegic plaintiff, but the Court rejected this defence because the existence of the waiver and its conditions were not brought to the attention of the plaintiff as he signed it.
A waiver or limitation of liability clause cannot be relied on if:
- the injured party’s attention was not drawn to the waiver provision at the time of signing;
- the injured party had not read the waiver provision; and
- the injured party was not aware of the waiver’s existence.
Even if a waiver or limitation of liability clause existed and was brought to the attention of the ski resort patron, the Ontario Superior Court of Justice has further suggested that an injured plaintiff may be awarded damages for a kind of negligence that was not contemplated or considered “as part of the flavour” of the language printed on lift tickets and season passes, and posted elsewhere on ski resort property. In 2002, in Brown v. Blue Mountain Resorts, the plaintiff accepted the risks of skiing, but said that “I don’t accept man-made risks that should be told – pointed out in the public”. The Court accepted that the plaintiff’s claim was due to the hazard that resulted from the ski resort’s negligence in maintaining and operating its snow-making equipment, and that the hazard was unexpected and would not normally occur on a ski facility. For these reasons, the Court found that there was a genuine issue to be tried, and dismissed the defendant’s motion for summary judgment. [4]
Courts across Canada have since followed Brown in accepting this argument as a genuine issue for trial, where defendant facilities have attempted to rely on existing waivers or limitation of liability clauses:
- In Champion v. Ski Marmot Basin, the ski area operators claimed that the alleged negligence was captured by the terms of the waiver, including the use of ski lifts. The plaintiff argued that the ski area operators were negligent in maintaining and grooming the lift track, and that the hazard created by this negligence was not one normally encountered. Like Brown, in accepting that this was a genuine issue for trial, the Court denied the defendant’s motion for summary judgment on the waiver of liability issue.[5]
- In Pascoe v. Ball Hockey Ontario, the plaintiff argued that his injuries were caused by the defendant’s negligence in failing to clear ice from the rink, and that the waiver that protected Ball Hockey from “all risks and hazards incidental to such participation” should not immunize the defendant from its actions. The plaintiff contended that the defendant knew or ought to have known about the dangerous condition and took no steps to give warning to the plaintiff. The Court agreed that the applicability of the waiver provision was a genuine issue for trial.[6]
- In Downs v. Georgian College, the plaintiff slipped on a loose mat and sustained injuries in the course of participating in a paramedic fitness course. Following Brown and the cases above, the Court was satisfied that there was a genuine issue for trial regarding the applicability of the release and waiver that the plaintiff signed.[7]
Most recently in 2015, in Trimmeliti v. Blue Mountain Resorts, the Ontario court decision reaffirmed that skiers have a responsibility to use common sense and maintain sufficient control as permitted by the conditions at all times while skiing. Furthermore, prominent, bold-typed proclamations, warnings, and waivers, whether clearly highlighted in a release agreement or loudly displayed all over public areas, will provide the defendant ski resort with a full answer to the tort claim of negligence.[8]
How Can a Personal Injury Lawyer Help?
When you have been injured, your focus should be on your recovery. An unexpected injury during a fun outing on the slopes can be devastating and costly. Therefore, it is imperative that you speak with an experienced personal injury lawyer who will be able to assess your case and determine whether you are legally entitled to damages in relation to your skiing accident. In your time of need, you need an expert who will successfully support your recovery by rigorously advocating for fair and just compensation of your injuries.
If you have been in a skiing accident and are injured, Bogoroch & Associates LLP can help. Please contact Richard Bogoroch (rbogoroch@bogoroch.com), Heidi Brown (hbrown@bogoroch.com) or Linda Wolanski (lwolanski@bogoroch.com) for further information on how we can assist you or your family member.
[1] Occupiers’ Liability Act, RSO 1990, c 0.2, s 3(3).
[2] Occupiers’ Liability Act, RSO 1990, c 0.2, s 4(1).
[3] Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186, 1988 CanLII 45 (SCC); see also Dyck v. Manitoba Snowmobile Association, [1985] 1 SCR 589, 1985 CanLII 27 (SCC).
[4] Brown v. Blue Mountain Resorts Ltd., 2002 CanLII 7591 (ON SC).
[5] Champion v. Ski Marmot Basin, 2005 ABQB 535 (CanLII).
[6] Pascoe v. Ball Hockey Ontario Inc., 2005 CanLII 3375 (ON SC).
[7] Downs v. Georgian College, 2008 CanLII 63205 (ON SC).
[8] Trimmeliti v. Blue Mountain Resorts Ltd., 2015 ONSC 2301 (CanLII).