Originally published at irvinschein.com.
The recent decision of the Ontario Superior Court in Trimmeliti v. Blue Mountain Resorts Limited is a useful reminder of the difficulty that an injured skier will face in suing a ski resort for a personal injury incurred on the slopes.
In this case, Mr. Trimmeliti suffered a fractured clavicle when night skiing with two other friends at the Blue Mountain Ski Resort near Collingwood, Ontario and attempted to collect damages from Blue Mountain.
Mr. Trimmeliti, a self-described intermediate skier, had been skiing at Blue Mountain for years. In fact, in the year of the accident (2006), he had a season pass at Blue Mountain and was generally familiar with its ski runs.
On the evening of February 9, 2006, he and two friends skied a number of runs over several hours until about 9:00 pm. They then decided to ski down an intermediate hill called Waterfall.
About a third of the way down Waterfall, where the run levels out for a distance, there is a trail breaking off to the left known as Crooked Oak. Crooked Oak is a black diamond run, meaning that it is somewhat more difficult than Waterfall.
The plaintiff testified that he was familiar with these runs.
As it happens, Crooked Oak was closed that night. In this case, as is typical of these situations, the fact that a run was closed was signified by an orange ribbon closing it off at the top of the run.
The plaintiff testified that he was leading his group down the hill and bore left to take the turn-off onto Crooked Oak. He claimed to have been unaware that it was closed. The next thing he knew was that something hit his collar bone and he was down on the hill. In fact, it appears that he was "clotheslined" by the ribbon itself and suffered the injury when he fell.
In other words, the very mechanism used by the hill to signify that a run was closed, presumably because it was not safely skiable, caused the injury.
In the lawsuit, Mr. Trimmeliti alleged that Blue Mountain had been negligent in the way in which it had closed off the Crooked Oak run by using the tape in a location where it was not illuminated by the night lighting used for night skiing. As a result, he alleged that the tape represented an obstacle that he could not see and therefore not avoid.
He also alleged that Blue Mountain had been operating snow making equipment in the area, further obscuring the ribbon.
The judge did not find any evidence to support these allegations. The judge found that even if the snow gun had been operating in the area, a skier would have been able to see the ribbon from at least 120 feet away, which is plenty of time to be able to stop. The judge went on to conclude that the site was lit by a high intensity light which was quite adequate for night skiing and which rendered the ribbon visible from a reasonable distance away to any skier skiing in control and at a safe rate of speed.
A more technical obstacle faced by the plaintiff had to do with his contract with Blue Mountain as represented by his season pass. The judge found that the terms of that contract warranted a dismissal of the claim all by itself.
The season pass included a release in favour of Blue Mountain. The release language included a title in capital letters in an enclosed box at the top of a page signed by the plaintiff when he obtained his pass, in large bold type and highlighted in yellow.
According to the judge, "it would have been impossible for any literate person to have signed this document – even if they did no more than scan the heading – and remain ignorant of its general purpose and intent." Although the plaintiff claimed not to have read the document before signing it, the judge found that he could not have failed to understand what it was about in a general way.
In the past, the plaintiff had skied at the resort using a day pass. Each person purchasing a day pass in at least the previous five years had been given a lift ticket to attach to their jacket with similar language. Furthermore, the judge noted that the same language was also boldly displayed in public areas of the hill including the ticket area.
In conclusion, the judge indicated that he was "hard pressed to imagine what more the defendant could have done to bring the defendant's required conditions of access to the ski hill in terms of waiver and release of liability to the plaintiff's attention."
There are very limited circumstances in which a waiver on a season pass or day lift ticket may not be enforced. For example, where the ski resort personnel know that the skier does not intend to be bound by the waiver, there is a positive duty on those personnel to bring its terms to the attention of the plaintiff. In this case, there was no such knowledge and in any event, Blue Mountain was found to have taken all reasonable precautions necessary to make it abundantly clear to this and all other skiers that they were skiing at their own risk.
The waiver, in this case, included a release of any claim based on negligence on the part of Blue Mountain. That part of the release was not tested because the judge found that Blue Mountain had not been negligent in the way it operated the ski hill. The question of whether or not a plaintiff would suffer the same consequences if it could prove negligence is not answered by this case. Accordingly, this discussion is, as they say, "to be continued..."
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