As we head into ski season in British Columbia, the recent case of Morgan v. Sun Peaks Resort Corporation delves into the issue of the enforceability of ski field releases. It is very common when purchasing a ski pass to agree to a standard waiver of liability releasing any claims against the ski field.
In this case Morgan, the plaintiff, had been skiing at Sun Peaks for at least the last 20 years, but one day, in 2006 she had a bad accident getting onto a new chairlift, the Elevation Chair. Although she had already used the Elevation Chair five or six times, this time she fell and was run over by an oncoming lift. She asserted that due to this she had suffered serious personal injuries, including dislocating her hip.
When the plaintiff tried to sue Sun Peaks Resort Corporation for negligence she asserted that the chairlift operator was negligent as they did not move to stop the lift in time and therefore their negligence caused, or contributed to her injuries. The defendant, Sun Peaks Resort Corporation, responded by firstly denying that their employee was negligent and then secondly, producing the standard form waiver that the plaintiff had signed when purchasing her season ski pass (the “Waiver”). The defendant argued that this Waiver released them from liability and barred the plaintiffs claim from proceeding.
The application in this case was brought by the defendant to dismiss the plaintiffs claim via a summary trial application. The plaintiff opposed this application as her position was that if it was found that the employee lift operator was negligent, then there could be an argument that the Waiver did not apply and she wished for the case to proceed to trial.
The court found that the Waiver was enforceable and therefore the plaintiff was barred from proceeding with her claim. In addition, the court also found that the Waiver was sufficiently broad enough to bar the negligence claim against the actions of the chairlift operator. The court found that any negligence on behalf of the defendants employees fitted within the scope of the Waiver.
How does this apply to day ski passes?
In this case there was evidence from both the plaintiff and an employee of the defendant, that the plaintiff had been given adequate opportunity to read over the Waiver prior to initialing and signing same. The employee of the defendant who was responsible for the waivers gave evidence on how she was trained to present the document to customers. The court found that the plaintiff knew she was signing a waiver agreement and that she was bound to same.
It is not clear how the court’s reasoning would apply to the standard waivers and release agreements that are on the reverse of, or supplied with, many day ski passes. It is unusual to be required to sign a release prior to purchasing a day pass and ski field operators should ensure that they review the reasoning within this case to ensure that the terms and conditions of their standard waivers are clearly brought to the attention of their customers so there is no question of enforceability. It is also important for skiers to review the content of their waivers to ensure that they are aware of the legal rights that they are waiving when skiing at resorts.
This case should be reviewed by all adventure operators to ensure that they have appropriate practices in place regarding presenting releases to customers and that the terms of their releases are sufficient to encompass a wide range of scenarios.