An injured man brought a civil suit for damages after he suffered a fractured clavicle while he was night skiing with two friends at Blue Mountain Ski Resort. The skiing accident occurred when the man crashed into a fluorescent orange mesh ribbon that was used to mark a closed run.
In Trimmeliti v Blue Mountain Resorts Limited,
the defendant, Blue Mountain Resorts Limited, sought summary judgement to dismiss the personal injury lawsuit against them, on the basis that there was no negligence on their part that contributed to the accident and also due to the fact that the plaintiff signed a liability waiver contract before skiing. The motion judge was tasked with deciding whether there is any issue requiring a trial or, if there is an issue, whether it can be resolved satisfactorily in the summary judgement trial.
With regard to the contractual waiver contract, the judge concluded that evidence in this case suggests that there is no genuine issue requiring a trial. This civil proceeding took place nine years after the skiing accident, which meant that some of the evidence had diminished, particularly the eyewitness evidence presented by the plaintiff and his friend, which was based on a vague and inconsistent memory of the circumstances of the accident. After having examined all the evidence, Justice Dunphy found that Blue Mountain was not negligent in causing or contributing to the injury sustained by the plaintiff.
The only objective records available for the day of the accident included: an accident report recorded at the scene; poor-quality photographs taken afterwards by a Blue Mountain ski patrol; better photographs and a video taken at night one month later; a signed season pass document including relevant liability waivers; and routine records of operation indicating, for example, the state of the various lifts and runs. This was the only evidence not provided by witnesses and experts, who based their testimony on their memory of the event many years after it occurred. Witnesses included two ski patrols who were at the scene and both of whom documented the incident in a report. Surprising to the judge is the fact that one of the plaintiff’s friends and a key eyewitness to the event did not provide an affidavit or testify about the event. On the issue of the evidence, in general, the judge noted that the relative lack of quality of evidence must be considered in his assessment whether any specific issue requires a trial for fair resolution.
The circumstances and issues surrounding the skiing accident
At the time of the skiing accident, the plaintiff was a 22-year-old university student. He described himself as an intermediate level skier and owned his own equipment. He had skied for many years and also, for several seasons at Blue Mountain resort.
After a few hours of skiing, at almost 9 p.m., the three friends skied down a run called “Waterfall”. Another trail called “Crooked Oak” breaks off this run, about one third of the way down, but this trail was closed and a fluorescent orange reflector-tape was strung across its entrance to mark its closure. The plaintiff, who led his friends down the hill, turned to take the Crooked Oak run, when his collarbone collided with the ribbon and he fell. He does not remember ever seeing the ribbon or attempting to avoid it.
The plaintiff’s Statement of Claim alleges that the ski resort was negligent in using tape to close off the Crooked Oak run, particularly as snow making equipment allegedly obscured the skiers’ vision and there was no lighting. The plaintiff named these two issues as contributing factors in his collision with the ribbon, that he could neither see nor avoid.
The allegation that there was snow-making equipment, operating near the entrance to Crooked Oak and creating a plume of snow, was based entirely on the affidavit and verbal testimony evidence provided by the plaintiff’s friend, and it was based on his memory of an event nine years in the past. The plaintiff had no personal memory of the snow-making equipment, although it was in his claim.
On cross-examination, the plaintiff’s friend testified that all three friends were skiing at a ‘leisurely pace’, by his subjective standards. The friend further recounted that he could and did see the tape, and he also saw the plaintiff laying on the ground after the collision. This testimony caused Justice Dunphy to question why the plaintiff did not also see the ribbon when he skied past the same location. The judge surmised that the plaintiff did in fact see it and attempted to go under it, which would explain why he sustained a neck-level injury, despite being a tall man and hitting an obstacle only three feet or so from the ground. However, after his testimony was interrupted by the plaintiff’s counsel and he was reminded of his affidavit evidence, the friend changed his account of the events and stated that he lost visibility of the plaintiff until he came close and saw his friend ski slowly and then collide with an invisible barrier. The judge held that the friend’s ‘revised’ statement lacked credibility and was inconsistent with the plaintiff’s testimony that he did not slow down at all because he did not perceive the ribbon. In fact, Justice Dunphy stated that the evidence of the eye witnesses “has faded to the point of near uselessness except where refreshed with notes”.
Justice Dunphy concluded, on a balance of probabilities, that the plaintiff failed to prove his allegation that the snow making equipment was operating that evening and contributed to his injury, and it was in fact likely not operating in the Waterfall/Crooked Oak run area at the time of the incident.
The plaintiff’s claim also alleged that the scene of the accident was not lit. However, there was overwhelming evidence that this statement is untrue. A light tower is situated above the location of the accident and photographs show clearly that the area was well-illuminated. Therefore, lighting was not a contributing factor in the incident and there was no negligence on the part of the defendant for a lack of proper lighting.
Based on an examination of photographic and video evidence, that was corroborated by several Blue Mountain resort employees, Justice Dunphy was satisfied that any reasonably prudent skier who was keeping a proper lookout would have seen and reacted in time to avoid collision with the ribbon used to mark a closure of Crooked Oak run. The judge made this finding, regardless whether snow-making equipment was in operation. It was asserted that a proper lookout requires a skier to maintain a rate of speed and control that is consistent with their range of vision and stopping distance. Justice Dunphy’s concluded that the plaintiff had no reasonable grounds for a claim of negligence against the ski resort.
On the issue of the liability waiver, the judge drew attention to bold type on the waiver document, which included the words, “by SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE. PLEASE READ CAREFULLY!” The plaintiff initialled a box beside this verbiage and signed the document, and it was witnessed by a resort employee. The document contained other information that is typically included on such forms, including a warning that skiing is a potentially dangerous activity and accidents are almost inevitable for some people at some time. Also clearly stated in the document was an explicit ‘assumption of risk’ clause, wherein the person signing the waiver acknowledges that they are aware of the many risks and dangers involved in skiing and snowboarding, which may include variations in terrain, reduced visibility, possible collisions with fences and other structures, and so on. The waiver indicated that it applied to all claims, including negligence or breach of statutory duty as specified in the Occupiers’ Liability Act. Anyone who wished to purchase a season pass was required to complete the waiver. Justice Dunphy stated that he believed no one could have signed the document without understanding its intent and purpose.
There are some circumstances under which a liability waiver may not be enforced. Referring to Goodspeed v. Tyax Mountain Lake Resorts Ltd. (2005), it was noted that a waiver may not be enforceable (whether or not it was read by the party signing it) if:
- There has been non est factum (which may be plead when a defendant signed a waiver without knowing its actual intention or purpose)
- There was misrepresentation by the defendant
- The defendant was aware that the plaintiff does not intend to be held to the terms of the waiver, and therefore has a duty to bring the terms of the waiver to the defendant’s attention
Justice Dunphy asserted that none of the above exceptions apply to this case.
Under the Occupiers’ Liability Act, ski facilities or other venues may sometimes be held responsible for injury, even if a liability waiver was signed, if the facility created a hazard that caused injury but which no one would anticipate being present in the said venue. However, in this case, the judge found Blue Mountain resort was not negligent in the plaintiff’s accident. On all these grounds, the defendant resort’s motion was granted and the claim was dismissed.