Ski resort negligent; waiver protects them from damages
Would the waiver be upheld? That was the question.
In the recent decision of Fillingham v. Big White Ski Resort Limited 2017 BCSC 1702, on March 4, 2013, a snowboarder, the plaintiff, Gary Colin Fillingham, was seriously injured (including a broken leg) after skiing along a trail at the Big White Ski Resort. The ski run had a rope line that often prevented unimpeded access to the short cut, but the snowboarder found the rope line to be open. The snowboarder tried taking the short cut, but recent snow removal by the ski resort resulted in a sheer 10-foot drop down into a parking lot, and the snowboarder was seriously injured
The plaintiff had purchased a day ticket at the Big White Ski Resort operated by the defendant Big White Limited (“BW Limited”). The ticket contained detailed language excluding liability (a “waiver”), and substantially identical waiver language appeared in a highly-visible notice posted at all ticket purchase locations. The ticket’s language includes:
As a condition of use of the ski area and other facilities, the Ticket Holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing, snowboarding, tubing, skating, cycling, hiking and all other recreational activities; the use of ski lifts; collision or impact with natural or man-made objects or with skiers, snowboarders or other persons; travel within or beyond the ski area boundaries; or negligence, breach of contract, or breach of statutory duty of care on the part of Big White Ski Resort Ltd. and its directors, officers, employees, instructors, volunteers, agents, independent contractors, subcontractors, representatives, sponsors, successors and assigns (hereinafter collectively referred to as the “Ski Area Operator”). The Ticket Holder agrees that the Ski Area Operator shall not be liable for any such personal injury, death or property loss and releases the Ski Area Operator and waives all claims with respect thereto. …
A large, highly visible wavier notice that contained detailed language substantially identical to the Exclusion was posted at all ticket locations at Big White. The Defendant, BW Limited, sought dismissal of the action on a summary trial, on the basis that the Exclusion or waiver is effective to exclude any liability to Mr. Fillingham, and constituted a complete defence to the allegations of negligence made against BW Limited. The plaintiff argued that BW Limited is unable to rely on the Exclusion because BW Limited itself created an extraordinary and unexpected hazard and such a hazard does not fall within the scope of the Exclusion. Mr. Fillingham sought either: (a) a declaration that the Exclusion is not enforceable; or, in the alternative (b) an order dismissing the summary trial application and directing that the matter of the enforceability of the Exclusion be left for determination at the trial
The particular ski run was adjacent to a residential strata building, the Solana Ridge condominium complex, which could be accessed by a well-known short cut with a gradual slope, part of a trail known as “Highway 33.” Mr. Fillingham was a very experienced skier and snowboarder. Big White permits the use of the short cut, which is a known route to the Solana Ridge parking lot. Big White is responsible for snow plowing and snow clearing in the Solana Ridge parking lot. Big White erects and maintains the rope line along Highway 33. On March 3, 2013 and on the morning of March 4, 2013, the short cut was available for use and being used by skiers and snowboarders. As of Noon on March 4, 2013, when Mr. Fillingham was coming down Highway 33, the rope line at the short cut was still open. However, the path had been removed, thereby creating a hazard if the short cut was used, and the open rope line failed to mark or warn of that hazard. The court found that, in not taking steps after clearing snow in the Solana Ridge parking lot to ensure the rope line at the short cut from Highway 33 was closed, BW Limited failed to take reasonable care and was negligent.
The issue then turned to whether the Exclusion provided a complete defence to the plaintiffs’ claims against BW Limited. The court found that the intention of the exclusion was clearly to exclude liability on the part of ski resort for “all risk of personal injury . . . resulting from any cause whatsoever”, which specifically included negligence on the part of ski resort. The snowboarder was very familiar with this language, having seen it many times. The Court found that what occurred was not so extraordinary or unique that it could be said parties had not intended for it to be covered by exclusion, and this was not case where overriding public policy outweighed enforcement of the exclusion. Accordingly, the Court held that the Exclusion provided a complete defence to the plaintiffs’ claims against BW Limited. The action was, accordingly, dismissed.
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