18 Jun Waivers at Ski Hills
Do those waivers of liability on the back of your ski ticket have any effect? In the case of Apps v. Grouse Mountain Resorts Ltd., 2019 BCSC 855, the Plaintiff was seriously injured in a snowboarding accident at Grouse Mountain. He brought an action against Grouse Mountain for alleged negligence and breach of the Occupiers Liability Act. The Plaintiff also alleged that Grouse Mountain failed to warn him of the risks, dangers and hazards of using the jump.
Grouse Mountain sought dismissal of the action on the basis that the “exclusion of liability notice” constituted a complete defence to the claims. Some of you might be surprised to find out that the Judge agreed with Grouse Mountain.
A few months prior to the accident, the Plaintiff bought a Whistler Blackcomb season’s pass. In order to complete the purchase he had to sign a waiver of liability. He did not read the document but was aware when he signed it that it was a release of liability. A month later, he got a job as a ski/snowboard technician at an equipment rental shop in Whistler and worked there until his accident. Part of his job involved having rental customers sign a release of liability.
The day of the accident, the Plaintiff went night skiing at Grouse Mountain. He bought a ski area ticket at the ticket booth, attached it to his jacket and headed up the gondola to the ski area. He does not recall seeing an “exclusion of liability” sign at the ticketing area, nor did he read his ticket.
Once he arrived at the top of the mountain, the Plaintiff went directly to the terrain park. There were two signs at the entrance to the terrain park warning of the risks of using freestyle terrain and waiving the mountain’s liability. The Plaintiff testified that he did not see them. He had seen similar signs at Whistler Blackcomb but had not read them.
That evening the Plaintiff went off an extra-large jump in the terrain park and fell, suffering catastrophic injuries.
The Judge had to decide whether it was fair or reasonable for the Plaintiff to be bound by Grouse Mountain’s waivers of liability. At issue was whether Grouse Mountain took sufficient steps to give reasonable notice to the Plaintiff of (1) the risks and hazards of using the extra-large jump and (2) the mountain’s own waiver of negligence.
Under the Occupiers Liability Act, an occupier of premises owes a duty to take reasonable care to see that a person will be reasonably safe using the premises. That duty of care extends to the condition of the premises and activities on the premises. The occupier can contract out of that duty of care if they take reasonable steps to bring that exclusion to the attention of the person.
Prior to buying a ski ticket at Grouse Mountain, the only notice of the waiver of liability to day pass users was a bright yellow poster with a red border posted in the window of the ticket booth above the head of the ticket seller. Most of the poster was difficult to read. The mountain’s own negligence exclusion was buried about a third of the way down, and was not highlighted or emphasized in any way.
The Judge noted that it was unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign. It was positioned away from where the purchaser was focussed in order to make the transaction. The ticket seller was not instructed by Grouse Mountain to say anything about the waiver to ticket purchasers. However, the waiver was also on the back of the ticket, in virtually the same language and in the same format. As well, there were two large signs at the entrance to the terrain park.
With respect to the question of whether Grouse Mountain took sufficient steps to give reasonable notice to the Plaintiff of the risks and hazards of using the jump, the waivers at the ticket booth and on the ticket made it clear that skiing and snowboarding were risky activities. The signs at the entrance to the terrain park made it clear that using that area, including the jumps, was dangerous and that users did so at their own peril.
The Plaintiff had considerable experience with waivers of liability at Whistler Blackcomb in the months leading up to the accident. He should have known of the waiver of liability for Grouse Mountain’s own negligence. That he chose not to read the waivers did not render them invalid or inapplicable to him.
The Judge was satisfied that Grouse Mountain had given reasonable notice to the Plaintiff of the risks of snowboarding, use of the jumps and of the exclusions of liability, including exclusion of its own negligence.
The Court found that the Plaintiff was bound by the terms and conditions set out in the notice posted on the ticket booth at Grouse Mountain, which precluded him from recovering for any injury, loss, damage or expense sustained as a result of his accident. Accordingly, his action against Grouse Mountain was dismissed.