Each year, once the snow begins to fall, legions of skiers hit the slopes seeking thrills, chills and an escape from late-autumn ennui. Unfortunately, sporting activities such as this involve inherent risks that occasionally result in accidents, some of which give rise to lawsuits. The thorny issue then is: Who is responsible, and to what degree?
The victim’s injuries may be attributable to the owner/operator of the ski hill, to the victim or to both parties. It may also be, as in the recent Quebec Superior Court case Pierre Lessard et Paule Julien v. Centre De Plein Air Du Mont Kanasuta Inc.1, that a fault cannot be attributed to anyone.
On December 27, 2011, the plaintiff Pierrre Lessard (“Lessard”), an experienced skier, fell precipitously on a downhill ski run owned and maintained by the Defendant. His left knee was badly injured by the fall, rendering him partially disabled and unable to return to work.
Lessard maintained that the defendant ski-hill operator (the “Operator”) was responsible for the accident, and alleged that there was an irregularity on the trail that had caused him to fall. He further alleged that this irregularity, in which his ski had become wedged, constituted a trap. He and his wife (together, the “Plaintiffs”) were claiming damages totalling $1,600,000.
The Operator denied the allegations of negligence made against it, arguing that no fault on its part had been proven. It also impleaded the owners of a ski boutique (the “Boutique”) that had adjusted the bindings on Lessard’s skis three years previously.
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The Court identified three rules in the case law that are specific to actions involving downhill skiing accidents:
- A ski-hill operator has an obligation of means and of due care towards its clients.
- Downhill skiing, like all other sports, has inherent risks.
- The owner or operator of the ski hill must not create or tolerate the existence of a trap.
On those grounds, the Court concluded in this case that the accident was not due to the negligence of the Operator2, of the Boutique3 or its employees, or of Lessard. This was rather “[TRANSLATION] one of those unfortunate but all too frequent accidents that occur when sporting activities are being engaged in”.
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Commentary: The outcome of civil suits involving downhill skiing is highly variable, as it depends heavily on the facts of each case. It is up to the injured plaintiff to prove the circumstances of his or her fall and to establish that the ski-hill operator was at fault. To the extent that the skier cannot explain the cause of the fall, it will be difficult for him or her to establish the existence of a trap4.
The Quebec Court of Appeal5 has formulated two criteria to use in determining if an obstacle encountered by a skier constitutes a trap, i.e. the abnormality and unforeseeability of the obstacle6. In addition, in order for the ski-hill operator to be found liable, the accident must have been foreseeable by it.
Using these criteria, the courts have determined that an electrical pole bordering the ski run was a visible obstacle and did not constitute a trap7. The same was true of bumps and icy patches on an off-trail run that was not maintained8. In such circumstances, the presence of those features was found not to have exposed the skier to abnormal risks.
Conversely, a court has found that the posts of a fence erected to prevent skiers from falling into a ravine constituted a trap and should have been padded9. Similarly, a low wall and a picnic table bordering a run constituted a trap, and signs should have been posted warning skiers about them10. In both of these cases, it was foreseeable that a skier could collide with these objects and consequently the ski-hill operator should have taken reasonable measures to alert skiers to their presence.
In the case at issue, the Plaintiffs maintained that the mere fact that Lessard’s right ski got stuck and went vertical was abnormal and ipso facto demonstrated that there was a trap on the trail. However, the exact cause of the fall could not be established, or what the trap consisted of.
By doing so, the Plaintiffs were confusing the result with a fault by characterizing the fall as abnormal. But it is not the abnormality of the fall that is relevant, but the circumstances that led to it (the presence of the obstacle). The Court rightly concluded that the situation did not involve a trap and that the risk involved was one of the foreseeable and inherent risks in the sport of downhill skiing.
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Both the entity responsible for the premises where sports are being carried on and the members of its staff must take reasonable measures to ensure the safety of users of those premises and prevent foreseeable accidents. For their part, participants in a sport must take due care when using such premises and accept the risks inherent in the activity they engage in.
Despite a fault-free conduct of each of the parties, the risk of an accident can never be excluded, even when the conditions for engaging in a sporting activity are ideal.
The authors would like to thank Alice Boivinet, articling student, for her contribution to this article.