Increasingly, people are venturing into the backcountry, and are relying on friends (or even strangers) to make safe decisions for the group, and for themselves, even if those people have little practical training or experience.
In early 2009, Mark Kennedy was on a guided heli-skiing trip near Blue River, BC. Adrian Coe was also heli-skiing on that trip. The two experienced heli-skiers had never met before. At the start of the day their ski guide randomly paired them together as "ski-buddies". The guide explained that the ski buddy system was to be used during forested runs – buddies were to stay in verbal and visual contact with one another, in case one of them fell into a tree well. The two men did not speak, other than to share a mutual nod of acknowledgement.
Just before lunch, the group reached a logging cut block. The guide gave no specific instructions regarding the buddy system in the cut block, as opposed to when skiing in the forest. When Mr. Coe reached the bottom of his run, he immediately noticed that Mr. Kennedy was not there. He notified the guide and, after a quick search, Mr. Kennedy was found in a tree well. Despite resuscitation efforts, Mr. Kennedy passed away.
Mr. Kennedy's widow commenced a lawsuit, claiming his death was a result of negligence by his ski buddy, Coe. In his response, Coe argued that he had not agreed to be Kennedy's buddy and, even if he did, their relationship did not constitute a contract and that the ski buddy guidelines did not apply in the cut block. He further argued that Kennedy skied irresponsibly by not wearing a helmet, keeping his pole straps on, skiing away from the other members of the group, and not carrying a communication device like a whistle or radio to alert others.
At issue was whether Mr. Coe owed a duty of care to his ski buddy and, if so, whether he breached that duty.
Mr. Kennedy's widow claimed that Mr. Coe's duty of care fell into the category of "volunteer" or "assumption of liability" cases, that sees a duty imposed on those who voluntarily undertake to do something (that they are not otherwise required to do) and then do so negligently.
The judge disagreed, ruling that Coe did not owe a duty of care to Kennedy as there was not a "special relationship" of sufficient proximity between the two:
"...Mr. Coe did not take effective control over or undertake primary responsibility to manage or mitigate the risk and consequences of Mr. Kennedy falling into a tree well. Moreover, he did not know that the risk had actually materialized. Nor can it be said that Mr. Coe's agreement to be Mr. Kennedy's ski buddy put Mr. Kennedy in a worse position. It may have prevented Mr. Kennedy from being paired with another skier but any other skier would have been in the same circumstances and subject to the same directions from the guides as Mr. Coe.
When Mr. Coe agreed to be Mr. Kennedy's ski buddy in the circumstances here, he did not invite Mr. Kennedy to rely primarily on him to mitigate the potential risk of injury or death resulting from the hazards inherent in back-country skiing. Mr. Coe could neither control the inherent risks nor Mr. Kennedy's conduct. Any role that Mr. Coe played did not place him in a position where he was materially implicated in the control of the risk of Mr. Kennedy falling into a tree well and dying from asphyxiation. He did not assume responsibility for Mr. Kennedy's safety. He was not responsible for calling a search and conducting a rescue operation. This was the role of the experienced guides and support staff employed by Wiegele's."
... In my view, a skier who accepts a buddy relationship does not park his autonomy at the bottom of the mountain, and remains responsible for his own actions... "short of active implication in the creation or enhancement of the risk", one ski buddy is entitled to respect the autonomy of the other. I do not accept the view that Mr. Coe and Mr. Kennedy voluntarily surrendered all of their autonomy by agreeing to be ski buddies. They did so to a limited extent. Except when Mr. Coe followed Mr. Kennedy through the forest, each continued to ski as and where he wished without reference to the other.
There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves. However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence ... A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs. The "more" may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances..."
While this case clearly put the primary responsibility for safety on individual participants, it is not the final word on whether outdoor/adventure sport participants can be held liable for their fellow trip partners. Kennedy turned on the specific facts of that case, including the instructions given by the guides, the portion of the trip/run where the accident occurred, and the interactions (or lack thereof) between Kennedy and Coe.
It is understood by the author that the liability waivers used in the BC heli and cat-ski industry were revised post-Kennedy to include protection for guests, not just the company and guides. While this may afford protection to such industry clients in the future, individuals in the position of Mr. Coe will still need to retain legal counsel to argue the effectiveness of such waivers. (Mr. Coe had fortunately purchased travel insurance; that insurance protected him from the costs of defending the Kennedy claim.)
One can easily imagine a different situation in the recreational context. A group of buddies (or even strangers who got together online in a "meetup"-type group) embark on a day in the mountains. Perhaps one of the group is inexperienced, with one or more of the others acting as de facto, or explicit, "leader" or "mentor". Or perhaps the group merely has an understanding that they will look after one another, as is common particularly when travelling in avalanche terrain. If a member of the group gets injured, can they successfully sue the others?
Unfortunately, there is no hard and fast rule that can be set. Every case will turn on its own individual facts, but will be governed by the law of negligence:
- Duty of care. Does the person being sued owe the injured person a duty to take reasonable care to avoid causing an unreasonable risk of harm? (Who owes the duty? Caselaw says the determination is based on both "reasonable foreseeability" (whether the harm that occurred was the reasonably foreseeable consequence of the act) and "proximity" (is the relationship between the two of such a nature that the one is under an obligation to be mindful of the interests of the other?).
- Breached standard of care. What is the standard of care required of a reasonable person in the circumstances, and did the person being sued breach that standard?
- Causation. Did the actions of the person being sued cause the injured person's injuries, on a "but for" standard1 (i.e. but for the actions of the person being sued, the injury would not have occurred?)?
- Loss (damages). Did the injured person suffer compensable harm, and to what severity?
Individuals partaking in high-risk backcountry activities should be mindful of what they are agreeing to when it comes to the "buddy" system. Such relationships could possibly give rise to the "more" noted in the Kennedy case, and thus establish a duty of care. As one of the expert witnesses opined in Kennedy, "it is not black and white in the mountains".
1 Ryan Morasiewicz was counsel before the Supreme Court of Canada on the leading causation case in Canada that clarified this "but for" standard, Clements v. Clements, 2012 SCC 32.
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