Janet De Vita and Alina Gdaniec examine Apps v. Grouse Mountain Resorts Ltd., highlighting the limits of liability waivers in ski resorts and their impact on personal injury claims.
Most avid skiers and snowboarders have encountered warning signs and liability waivers at some point in their lifetime. Ski resorts often post signs at the park entrance, ticket booth, lift line, terrain park and elsewhere which warn of the risks of using the park, and compel users to waive certain rights against the facility in exchange for use of the park.
But how far do these assumption of liability signs really go in protecting the facility from liability? It might not be as far as you think.
In 2020, the British Columbia Court of Appeal released its decision in Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, reversing the lower court's decision to dismiss the plaintiff's claim for injury damages based on the assumption of liability postings at a ski resort.
The plaintiff, Mr. Apps, was a 20-year-old Australian snowboarder who was rendered quadriplegic after suffering a severe spinal cord injury at the Grouse Mountain terrain park. Mr. Apps sued Grouse Mountain for damages in negligence and breach of the Occupiers Liability Act in the design, construction, maintenance, and inspection of the ski jump on which he was injured.
The lower court dismissed the plaintiff's claim based on the defence of waiver of liability. The court considered the exclusion of liability notice above the ticket booth and on the ticket itself, as well as the warning sign posted at the entrance to the terrain park, which stated that Grouse Mountain was not liable for any injuries sustained on the hill. The lower court judge held that these notices constituted a complete defence to Mr. Apps' claim (Apps v. Grouse Mountain Resorts Ltd., 2019 BCSC 855).
The Court of Appeal disagreed with the lower court's opinion (Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78). In particular, the Court of Appeal found that Grouse Mountain had not taken reasonable steps to ensure that Mr. Apps was aware of and understood the "own negligence" exclusion in the liability warnings at the time that he purchased his ticket.
An "own negligence" clause purports to release the operator from liability for injuries, even where the injuries were caused or contributed to by the operator's own negligence. These types of clauses are among the most onerous conditions found in liability waivers.
Accordingly, the level of effort that a ski resort must put in to warn the buyer of "own negligence" conditions is especially high.
This is particularly the case in the field of sports activities, where "consumers might well expect a service provider to exclude liability for injury or loss arising from the inherent risks of the activity, but would be taken aback by an exclusion of liability for that provider's own carelessness."1
Additionally, notice of the own negligence clause must happen before the ticket is purchased. As stated by the Court of Appeal, "a belated notice is valueless."2
What constitutes sufficient notice of a waiver of liability depends on the specific facts of each case. The clause in Apps v. Grouse Mountain was buried about a third of the way down on a poster which was difficult to read, was not highlighted or emphasized in any way, and was located in a spot where it was "unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read."3
The Court of Appeal also rejected the idea that Mr. Apps' familiarity with liability waivers based on his experience at other ski resorts had any bearing on his actual knowledge and understanding of the own negligence exclusion in this case.4
The effect of the decision in Apps v. Grouse Mountain was not that Grouse Mountain was liable to compensate Mr. Apps for his injuries – the decision only allowed Mr. Apps to proceed with his claim with potential to succeed in the future.
Apps v. Grouse Mountain has been considered several times since its release in 2020 and remains good law. The case has been cited in claims for injuries suffered in several other extreme or adventure sport contexts, including snowmobile touring,5 four-wheeling,6 indoor trampoline parks,7 and mountaineering.8
Individuals planning on participating in adventure sports this winter should familiarize themselves with the rules surrounding liability waivers and how they can affect your individual rights.
Footnotes
1. Para 26 BCCA decision.
2. Para 41 BCCA decision.
3. Para 35 BCCA decision.
4. Para 72 BCCA decision.
5. Ortega v. Burley (c.o.b. Rocky Mountain Riders Snowmobile Tours and Rentals), 2023 BCSC 806.
6. French v. Augusta Motorsports Park, 2021 ONSC 8385.
7. Arksey v. 2328544 Ontario Inc. (c.o.b. Sky Zone Toronto), 2021 ONSC 4594.
8. Manson v. Mitchell, 2023 BCSC 723.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
