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Sports & Recreation Liability, Vol. 2, No. 1, January 2002

Protecting a Ski Area From Liability

Protecting a Ski Area From Liability

By Ian Mair and Tom Donnelly

The mere fact of an injury on the ski slopes does not mean there will be a judgment against the ski area operator. A ski area can raise several defences against the skier’s allegations of negligence, including that the skier has waived her right to sue.

The law permits a skier to contractually agree not to sue the ski resort if she becomes injured.1 This is often referred to as a waiver of liability, and ski resorts commonly use two types. Some waivers are found on the back of the lift ticket, and others are signed by the skier.

A court uses a two step analysis to determine if a waiver bars the skier’s action against the resort. First it will determine whether the skier is bound by the waiver. Then it will see if the terms of the waiver are broad enough to apply to the accident.

Is the skier bound?

The skier will be bound by the waiver, only if the resort took reasonable steps to bring it to the skier’s attention.2 In determining if the resort took reasonable steps, the court considers:

  • whether the waiver was signed;
  • the size, font, location, and colouring of the waiver’s wording;
  • headings or titles summarizing the waiver’s contents; and,
  • the presence of the waiver on visible and conspicuous signs throughout the resort and in promotional material.

The court will also take into account the skier’s knowledge and experience. Where a skier admits she knew there was some type of clause on the back of the lift ticket limiting the resort’s liability, the clause will usually be upheld.3 On the other hand, a clause might not bind an inexperienced skier who testifies she did not notice the waiver clause.4

Proving that lift ticket waivers were brought to the skier’s attention is difficult. The print is often small, and the skier, anxious to hit the slopes, may not have read her lift ticket. If the resort fails to prove that its measures were adequate to bring the clause on a lift ticket to the skier’s attention, the waiver will not be upheld.5

It is far easier to prove that a signed waiver was brought to the skier’s attention.6 As a general rule, a person is bound by an agreement to which she has put her signature, whether she has read its contents or has ignored them.7 The signed waiver will apply to the skier if she actually knew that it contained some type of limitation clause.8 However, it is unclear whether it will apply where the skier argues that she did not know the waiver excluded or limited liability. In some cases signed waivers were upheld in these circumstances,9 and in others, not.10

Is the waiver broad enough?

Most cases have required the inclusion of the word “negligence” in the waiver, although waivers have been upheld where “negligence” was not mentioned.11 A recent British Columbia heli-skiing case suggests that even the word “negligence” is not always sufficient since it has a narrow legal meaning that is not easily understood by the average person. The court commented:

Any waiver seeking to cover negligent conduct must surely contain something more than the word negligence. That something more would include, at the least, a context for the word negligence describing the kind of conduct amounting to negligence which is intended to be covered. In order for a court to find the term sufficient to cover any negligent behaviour, it must be satified that the individual signing it, if he read it, could reasonably be expected to understand its meaning. I hasten to add that the authorities on this subject do not require that that understanding be objectively found on the waiver alone. It may be gleaned from the circumstances of the individual’s knowledge of the activity at issue coupled with the document under consideration.12

In this case a signed waiver was upheld since it was worded broadly enough to refer to the accident, the format of the waiver was easy to read, the skiers knew well in advance of the trip that a waiver was required, and it was signed and witnessed independently from the application form.

Lay the groundwork for a waiver defence

No matter how careful ski area management is, accidents will happen. Lawsuits will happen. Before each season starts, management should prepare for the inevitable.

Management should bear in mind that their defence lawyer must prove that reasonable steps were taken to bring the waiver to skiers’ attention. The lawyer can do this by showing that waiver signs were prominently displayed and that skiers were told to read their tickets and that the tickets will limit their legal rights.

At the beginning of each season, take photographs of all waiver signs posted at the ski area, inside and out. Many signs look alike and remembering when a case goes to trial, often years later, where each sign was placed, may be impossible. So label the photographs clearly, indicating in detail where each sign was located.

Record the date of the photograph, the name of the photographer and, because employees come and go, the photographer’s address and driver’s license number. The driver’s license number is necessary because address changes are recorded with the Ministry of Transportation. When a case goes to trial and the photographer is needed to give evidence, the lawyer can obtain a current address from the Ministry.

If ticket staff initial each lift ticket as it is sold, after an accident, the wicket attendant can be identified and a statement can be obtained, confirming that the attendant repeated a standard caution to each customer to read the ticket.

Waivers printed on rental forms, ski school applications, or season’s ticket applications must also be brought to the attention of the skier. Where a skier is required to sign a form containing the waiver, staff should also sign it to indicate that they have explained the waiver, and witnessed the skier’s signature.

This brief article is intended as an overview, and it is not intended to be a comprehensive review of the law relating to waivers. For specific enquiries, please contact us.

  1. Occupiers’ Liability Act, s. 3(3).
  2. Section 5(3) of the Occupiers’ Liability Act.
  3. McQuary v. Big White; Dawe v. Cypress Bowl.
  4. Greevan v. Blackcomb.
  5. Wilson v. Blue Mountain; Greevan v. Blackcomb; Lyster v. Fortress Mountain.
  6. Schuster v. Blackcomb.
  7. Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co.
  8. Milina v. Bartsch; Schuster v. Blackcomb; Karroll v. Silver Star; Knowles v. Whistler Corp.; Ochoa v. Canadian Mountain Holidays Inc.
  9. Mayer v. Big White; Ocsko v. Cypress Bowl.
  10. Blomberg v. Blackcomb; Crocker v. Sundance.
  11. See e.g. Milina v. Bartsch.
  12. Ochoa v. Canadian Mountain Holidays Inc.

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The Sports & Recreation Liability newsletter is published by the Insurance Litigation Group of Cassels Brock & Blackwell LLP to keep our clients and friends informed of new and important legal issues. The articles are not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.

Inquiries regarding the Sports & Recreation Liability newsletter should be directed to Ian Mair.

© Cassels Brock & Blackwell LLP 2002