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 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 Floor1131
Kensington Road N.W. ,
Calgary Alberta T2N 3P4
403-571-5120
Darryl's email: darrylaarbo@courtneyaarbo.ca
Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php
Darryl Skiing:
Darryl A. Aarbo, Barrister & Solicitor
3rd Floor
403-571-5120
Darryl's email: darrylaarbo@courtneyaarbo.ca
Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php
Darryl Skiing:
*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*
