Skiing, snowboarding, and ice hockey are popular recreational activities enjoyed by both tourists and residents, throughout Ontario. Due to the inherent risks that exists in the participation of these active sports, vendors, such as ski resorts, often seek to maintain protection and exclusion from liability when accidents occur on their premises leading to injury. Liability waivers and legal defenses are some of the avenues that ski resorts take to avoid liability from ski accidents resulting in injuries.
Skiing, along with other active sports, involve a high likelihood of physical contact and bodily collisions, which can easily result in incidents involving injury. The Voluntary Assumption of Risk defense is often utilized by ski resorts to avoid liability. Ski participants should be aware of the assumption of risk that exists prior to engaging in this recreational activity. In addition, ski participants should carefully review and consider all elements of the waiver before signing.
Risks and Dangers
Although there are measures that can be taken to reduce and minimize the dangers, there are undeniably inherent risks involved in skiing. Whether it is for competitive or recreational purposes, skiing and other snow sports involve the possibility of bodily collisions with obstacles and other skiers. Curling Canada further elaborates in the concept of Voluntary Assumption of Risk in Waiver of Claims & Assumption of Risk by stating that, “There is physical risk associated with all physical activity – this risk is inherent, unavoidable, reasonable and, in many sport and recreation settings, desirable.”
The successful assertion of the Voluntary Assumption of Risk defense or volenti non fit injuria requires the following elements:
- An agreement between the two parties that involved the plaintiff’s forfeiture of his or her right to sue with acknowledgement of the risk involved in the activity.
- The plaintiff’s written or implied release of all liability of the defendant for any injuries resulting from the activity.
In addition to the defense of Voluntary Assumption of Risk, ski resorts rely primarily on the contractual protections afforded to them by waivers and releases from liability. Ski resorts make it a practice to have all participants sign a waiver releasing the company from premises liability should an incident resulting in injury occur. Under the Ontario Occupiers’ Liability Act, R.S.O. 1990, the occupier, owner or manager of a property owes a duty of care to keep anyone who comes onto the premises safe. However, liability waivers favoured by recreational venues commonly require participants to waive any claims with respect to negligence or a breach in any duty of care stipulated under the Occupiers' Liability Act.
Each case of personal injury is different and the court findings may vary. In the 2015 case, Levita v. Alan Crew et. al., the plaintiff sued another player and the hockey league after he was seriously injured in a late body check that occurred during a “non-contact” ice hockey game. The plaintiff had to undergo surgery and other medical treatments for a fractured right tibia and fibula. A waiver had been signed by the plaintiff, which notified him of the possible dangers and the inherent risks involved in his participation. The court did not find the league to be liable because of the inherent and inevitable risk involved in the sport, and also, because there was no evidence that the rules and the penalty system had not been enforced. Another reason why the court ruled in the league’s favour is the fact that the plaintiff, Mr. Levita, is a lawyer and therefore expected to fully understand the significance of signing a waiver that listed all the potential dangers and injuries, including the one suffered by the plaintiff.
What You Should Expect
Ski resorts will likely fall back on legal defenses and waivers to protect them from liability and responsibility for sports injuries occurring on the premises. But there are measures that you can take when preparing for a ski trip. If you are planning to participate in an active recreational activity such as skiing or snowboarding, you should:
- Be aware of the inherent risks and dangers involved.
- Expect to be required to sign a waiver and/or release form.
- Review and carefully read the waiver in full before signing.
- Take protective measures to avoid injury and reduce the likelihood of hard.
Should you get involved in an unfortunate accident resulting in bodily injury, you should:
- Keep a copy of the waiver and any other documents you signed prior to participation.
- Take detailed pictures at the scene of the incident.
- Obtain a copy of the incident report.
- Get the names and contact information for any witnesses.
If you are injured in a skiing accident
Skiing accidents can certainly put a damper on a fun and adventurous skiing trip. The injuries sustained can range from very minor to serious and life-threatening. However, even if you signed a liability waiver, there are some types of accidents that would not be considered an expected or normal danger for the activity and in fact, may be have been caused by a hazard created by the owners or organizers. In such a case, an injured person may have legal grounds to file a negligence suit.
If you are involved in a skiing accident and would like expert guidance on how to best proceed with a personal injury claim, contact an experienced lawyer at Injury Lawyers of Ontario (ILO). Our sports injury lawyers are familiar with these types of cases and can provide expert guidance and representation.