Chairlift Negligence Claim Dismissed Due To Waiver


Adding to this site’s archived cases addressing waivers of liability in sporting injury claims, reasons for judgment were released this week by the BC Supreme Court, Kamloops Registry, addressing the effect of a waiver following a ski-lift accident.
In this week’s case (Morgan v. Sun Peaks Resort Corporation) the Plaintiff was “preparing to load onto a chair lift at the ski resort owned by the defendant Sun Peaks Resort Corporation when she fell.  The approaching chair lift was not stopped in time and she was run over by it“.  Prior to this incident the Plaintiff signed a waiver of liability which is commonplace at ski resorts.  She sued for damages alleging negligence and the Defendant applied to have the claim dismissed based on the strenght of the waiver.   Madam Justice Griffin upheld the waiver and dismissed the lawsuit.  In doing so the Court provided the following reasons:
[30]         The Release describes the defendant and its directors, officers, employees, agents, contractors, and representatives as “THE OPERATORS”.  In the release section of the Release, it states that in consideration of the Operators accepting the application for a season pass and permitting the use of their facilities and property, including use of the lifts, the party signing agrees as follows:
1.         TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE OPERATORS AND THE PROVINCE, and its directors, officers, employees, agents, guides, instructors, independent contractors, sub-contractors, representatives, sponsors, successors and assigns (all of whom are hereinafter collectively referred to as “THE RELEASEES” ), and TO RELEASE THE RELEASEES from any and all liability for an loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my participation in any recreational activities in the controlled recreational area, or my presence around the recreational activities in the controlled recreation are, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT R.S.B.C. 1996, c. 337,  ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF ANY RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATION AREA REFERRED TO ABOVE.
[31]         As noted, the Release refers to the releasor’s “participation in any recreational activities in the controlled recreational area” or presence around those activities.  At the top of the Release, the term “recreational activities in the controlled recreational area” is defined as follows:
DEFINITION: In this agreement, the term “recreational activities in the controlled recreational area” shall include all activities or involvement in any way connected or associated with lift accessed & non-lift accessed activities within the controlled recreational area; including but not limited to skiing, snowboarding, telemark skiing, cross country skiing, golfing, hiking, sight seeing or mountain biking throughout the controlled recreation area or with orientation, instruction, training or guiding given by THE OPERATORS.
[32]         Furthermore, the Release provided that the releasor assumed certain risks.  In a section headed “Assumption of Risks”, the Release provided:
ASSUMPTION OF RISKS: I am aware that recreational activities in the controlled recreational area involves many risks, dangers and hazards including, but not limited to; boarding, riding or disembarking lifts; changing weather conditions; exposed rock, earth, or other natural or man made objects; trees, tree wells, tree stumps and forest dead fall; changes or variations in the terrain which may create blind spots or areas of reduced visibility; changes or variations in the surface or sub-surface; streams, creeks; collision with lift towers, fences, equipment, vehicles or structures; collision with other participants, spectators or bystanders; negligence of other participants, spectators or bystanders; and NEGLIGENCE ON THE PART OF THE OPERATOR INCLUDING THE FAILURE ON THE PART OF THE OPERATORS AND THE PROVINCE OR ITS STAFF TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA.  I am also aware that the risks dangers and hazards referred to above exist throughout the controlled recreational area and that many are unmarked.
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.
[33]         On its face, the Release is very broad.
[34]         The Release specifically identified the risks of boarding, riding, or disembarking the lifts. It excluded liability resulting from the releasor’s participation in “recreational activities in the controlled recreational area” which included activities or involvement in any way connected or associated with lift accessed and non-lift accessed activities the Release covered.  It also excluded liability for the negligence of the Operator and its staff, including in safeguarding the releasor from the risks, dangers and hazards of recreational activities in the controlled recreational area, which as defined, included activities associated with lift accessed activities.

[55]         Coming back to the central allegation here, that the employee failed to press the stop button in time, the plaintiff has advanced no argument that would explain how that type of alleged employee failure could be considered to amount to mechanical breakdown or equipment failure.  There is no suggestion of any evidence that there was mechanical breakdown or failure of equipment. 
[56]         I conclude that the scope of the Release is sufficiently broad to encompass the plaintiff’s claim against the defendant based on alleged negligence of the chairlift operator in delaying in pressing the stop button immediately upon seeing the plaintiff fall.   I am satisfied that this is the only evidence of possible negligence that has been put forth by the plaintiff, and that this conduct does not fit within the exclusion clause in the Release.  Given my conclusion that such conduct would fall within the scope of the Release, the defendant must succeed in this application. 
[57]         The plaintiff’s claim is therefore dismissed.

bc injury law, Madam Justice Griffin, Morgan v. Sun Peaks Resort Corporation, Waiver of Liability

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ERIK
MAGRAKEN

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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