Thursday, 24 April 2014

Legal Waivers and Assumption of Risk in Extreme Sports

Liability Issues with Backcountry Skiing,

Extreme Sports, Waivers and Assumption of Risk

Kennedy v. Coe
2014 BCSC 120

By Darryl A. Aarbo

Back country downhill skiing is becoming more popular.  Advances in equipment technology combined with the assistance of highly trained guides have allowed more people have the pleasure of experiencing this style of skiing.  Just as technology and sherpas as made climbing Everest easier than when Sir Edmund Hillary first climbed it, backcountry skiing has been made easier with new skis and guides who know where to go.  I have tried it and I love it.  In fact, I am now quite addicted to powder skiing.  I have done a number of trips into the backcountry using helicopter and cats.  No lifts lines, absolute quiet, stunning scenery, deep light powder that makes you feel like you are floating.  Those are just some of the things that make it a fantastic experience.

The downside of more people into the back country is more accidents and more deaths.  This year was no exception.  It is very dangerous and even the best guide cannot completely avoid all avalanches.  Also, unbeknownst to many, one of the biggest dangers is not avalanches but tree wells.   Most people that fall into a tree well cannot get out without assistance.  In an experiment, 90% of volunteers that went into one could not get out without assistance.  Without assistance most people will die.  A tree well is basically a void around the base of a coniferous tree.  It acts like a “booby trap”, as we used to say as kids.  If the snow is deep enough you can ski right over it without even knowing you are skiing over a tree until you hit the void.  There are places in the Purcell and Selkirk Mountains ranges where you are sking on many metres of snow.  Also, if skiing in trees that are clearly visible then you may never notice the wells because the lower limbs of the trees and  the loose snow on top of the well make it almost invisible.  Once in a tree well, the more you struggle against it, the more the walls collapse around it and the more snow falls down from the tree above covering the victim.  Having a buddy is critical to getting out alive.

It was inevitable that a tree well death would end up in a law suit.  The first case of its kind was Kennedy v. Coe, a 2014 decision of the British Columbia Supreme Court.  It has become known as the “Ski Buddy” case.  On January 11, 2009 a man died while heli-skiing with a group of guided skiers in the back country when he fell into a tree well.  He was not rescued and suffocated.

The man’s widow sued his assigned “ski buddy”.  This is the person that was assigned to ski with the deceased at various times during the day.  The two men had never met each other before sharing this adventure.  It is common practice in back country skiing for the guide to pair people up, especially when skiing through the trees where tree wells are common.  The idea being that if one person goes into a well then the other person can help get them out.  When skiing through the trees it is impossible for the guides to watch every skier all the time. 

The widow did not sue the heli-ski company or the guides, but sued the buddy.  The deceased had signed a waiver regarding the heli-ski operation.  She argued that the buddy owed her husband duty of care and he failed in that duty of care when he did not assist her husband when he fell into a tree well.  This is the first case of its kind in Canada. 

What this case was asking was whether those two men owed a duty of care to each other and if so, was the defendant negligent in the exercise of his duty of care. 

The Court found that there was not a duty of care between the two skiers in the circumstances of this case.  The Court left it open to find that a duty of care could arise in a different fact situation.  The Court found that in this case the guide had not expressly instructed the two to ski together for the portion of the run where Mr. Kennedy died.  Thus, leaving it open to another court to find a duty of care in a different fact situation.  In particular, the court seemed to suggest that if they had been told to ski together on that run then there may have been a duty of care.  The Court went on to find, however, that if there was a duty in this case then the defendant met that duty.  He reported the man missing within one to three minutes of meeting at the assigned spot. 

Practically speaking, however, reporting someone missing within a few minutes at the bottom of the hill is not much help.  If you have ever done this before, you would know why.  When you are at the bottom of a treed run and you look up, there are hundreds if not thousands of trees.  The road back is deep snow, possibly metres deep, up a sharp incline.  Where do you start looking for a person buried in snow?  If his tracks got skied over then it could be impossible. 

The court also talked about the assumption of risk in a high risk sport.  What follows are my comments on the assumption of risk in high risk sports.  I represent a lot of sporting clubs and umbrella sporting groups.  I tell them all the same thing.  There is a difference between the voluntary “assumption of risk” and “negligence” – never forget that.  The waiver is an acknowledgement of the inherent risks of any sport and is particularly important in cat or heli skiing.  People need to know that they can die and how they can die so they can make an informed decision as to whether or not they want to participate.  The waiver is very important in that regard.  If someone dies in an avalanche or tree well then the waiver is important.  Also, it is important to deal with injury, such as a broken leg or neck for that matter.  It should not be open to someone to participate in an extreme sport and then sue because that person broke a leg. 

For the waiver to be most effective there should be a close monitoring of the signing process.  At a resort I was at recently there was an employee that hovered with each guest individually and ensured that they read the waiver and then asked if we had any questions.  They would be able to state unequivocally that we read it, if asked in court.  I suspect that they were also monitoring for alcohol or drug consumption because they were close enough to our face to smell anything on my breath.  That is the proper way to have a waiver signed.  Anything less could affect its enforceability.

Where waivers get complicated is negligence.  Again, there is the assumption of risk, but this does not cover errors and omissions made by people in the exercise of their duties.  It is an important distinction and not many appreciate the difference.  Waivers are not very effective, if at all, to cover negligence. I will give you an obvious example.  If there is a problem with the helicopter, the operator is informed of the problem and continues to use it despite the advice of the mechanic that there is a problem.  There is an accident and people are injured.  There would likely be liability.  The ski resort clearly owes a duty of care and an accident would be foreseeable once the mechanic advises of a problem.  The waiver does not cover heli accidents when the resort pushes forward in spite of a known problem. 

I will give another more subtle example of something that happened to me over Christmas.  I was cat skiing with my buddy.  My friend bought a new pair of skis and, although the DIN setting was fine while resort skiing, when we were in the deep powder the DIN setting was obviously not correct.  My friend kept popping out.  It was frustrating for the whole group and we were already running late because a couple of skiers from Ontario decided at the last minute to rent those packs that expand in the event of avalanche so we were already running about half an hour behind.  It was going to be an awesome powder day because it had been snowing like crazy, and probably one of the first really good powder days of the season.  The front guide was visibly annoyed by the situation, he seemed more concerned about his good day skiing than safety.  As we were about to head into the trees my friend asked for a screwdriver to adjust the setting.  He was obviously concerned about heading into the trees.  I will never forget what the front guide said: “Just gimp it down and we will fix it at the bottom”.  Both the back guide and myself jumped in and said absolutely not, we fix it now before we go into the trees.  It was the back guide who pulled out the screwdriver and let my friend fix it himself. 

As a friend and lawyer I have a lot of problem with the guides’ comment.  If my buddy had followed that advice and then ejected and hit a tree or then fell into a tree well then I have to think there is a chance that there would be liability.  There was a statement by a person in authority, he basically ordered him down and an accident occurred then there could be a legal problem.

The other thing with this guide was that his instructions were very poor.  It was snowing like crazy and windy at the top, yet he talked forward a lot of time.  He would start talking to us and then turn to start his run, while finishing his sentence – while giving us instructions!  If we were at the back, we had to ask other people what he said.  What if we were supposedly told to keep left of his tracks and ski within 20 metres but we thought we heard him say keep within 20 metres of his tracks, we ski right within 10 metres and fell off a cliff or set off an avalanche?  The last thing about this guy (as you can tell I was not impressed).   

These are real life examples where problems could have been caused by the guide.  Real life examples that could have resulted in a problem but did not.   Again, I would not think that waivers cover these examples.  Getting the customer to assume the risk does not allow the organization to get away with negligent behaviour.  There is a clear duty of care imposed upon  guides.  Their behaviour and training is crucial.  They have to put safety first always, even when you have a couple from Ontario renting more equipment at the last minute or have a slow skier or a skier has technical problems.  Safety First.

For more information contact:

Darryl A. Aarbo, Barrister & Solicitor
3rd Floor 1131 Kensington Road N.W.
Calgary Alberta T2N 3P4 

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*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*

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