In Cejvan v. Blue Mountain Resorts (2008), the Ontario Superior Court of Justice considered the enforceability of unsigned exclusions of liability. The case contains potentially significant commentary concerning claims against ski resorts and other facilities involving high risk leisure activities.
On December 6, 2002, the plaintiff, Kenan Cejvan, was snowboarding on the Schuss ski hill at Blue Mountain Resort. During his first descent, the plaintiff approached what he perceived to be a snow mound on the right edge of the groomed section of the hill. The plaintiff initially intended to “jump” the mound, but then decided to veer around the right side of the mound. Immediately after clearing the mound, the plaintiff collided with three exposed steel pipes protruding vertically out of the ground. As a result, the plaintiff suffered injuries to his right leg, shoulder and back.
What the plaintiff perceived to be a snow mound was in fact a hydrant pad covered with snow. The defendant, Blue Mountain Resorts Limited, placed hydrant pads throughout the hill in order to protect the snowmaking equipment protruding from the ground immediately behind the pads. Prior to opening the Schuss ski hill to the public on the day of the accident, Deborah Gibson, a ski patroller employed by the defendant, noticed during her morning inspection that the hydrant pad was covered in snow. Ms. Gibson did not mark the area as a potential hazard or remove the snow covering the hydrant pad and instead filed an inspection report declaring that all hydrant pads were in position, clean and free of snow.
The plaintiff alleged that the defendant was vicariously liable for his injuries resulting from Ms. Gibson’s knowing and intentional failure to clear the hydrant pad. The defendant argued that the plaintiff was negligent in his approach to the mound and that he was bound by an exclusion of liability.
1. The Hydrant Pad – The court established that the extent of snow covering the hydrant pad was such that a reasonably prudent snowboarder would have no indication of the impending danger.
2. Standard of Care – The court considered the standard of care for both the defendant and the plaintiff.
A. The Defendant – The court used the Occupier’s Liability Act and the defendant’s internal Patrol Services Manual to establish the reasonable requirements of care mandated in this circumstance. The Patrol Services Manual instructed patrollers to mark hazards such as snow-covered hydrant pads and report them for maintenance. Ms Gibson’s failure to follow these instructions compelled the court to find that the defendant breached its legislatively mandated standard of care to the plaintiff.
B. The Plaintiff – All users of a ski hill are warned to adhere to the Alpine Responsibility Code (the “Code”). Given the plaintiff’s over fifteen years experience in skiing and snowboarding, the court found it a reasonable inference that the plaintiff was familiar with the Code and that the careless and reckless approach to the snow mound breached his responsibilities under the Code.
On the issue of contributory negligence, the court found that the plaintiff materially contributed to his own injuries to the extent of 80% of the damages suffered.
3. Exclusion of Liability – Attached to the walls of all ticket booths at Blue Mountain Resort were signs displaying the defendant’s exclusion of liability policy. The policy was also printed on the back of the tear away portion of each lift ticket. The policy included broad and inclusive language indicating that the ticket holder assumed all risk of personal injury resulting from any cause whatsoever including negligence on the part of Blue Mountain Resort and its employees. The defendant argued that this exclusion of liability should bar the plaintiff’s claim.
The court ultimately dismissed the plaintiff’s action on the basis of the exclusion of liability provision and made the following observations to determine the validity of the exclusion of liability:
A. Presentation of the Exclusion – The wording of the exclusion was clear, legible and visible. The signs containing the exclusion were in prominent colours, and their impact on a patron’s legal rights were emphasized with certainty. In addition to the signs at the ticket booth, at the entrance to the chairlift of the Schuss ski hill was another sign reminding patrons to read the exclusion of liability printed on their ticket. The exclusion of liability printed on the plaintiff’s ticket was found to be visible and properly attached to the plaintiff’s jacket.
B. Scope of the Exclusion – The language of the exclusion of liability was sufficiently broad as to include injuries suffered due to the defendant’s negligence.
C. The Plaintiff’s Experience – The court reasoned that the plaintiff’s numerous previous visits to Blue Mountain Resort along with his personal sophistication were sufficient to establish that he knew that his use of the Schuss ski hill was subject to certain conditions.
Following these observations, the court ruled that the defendant had taken all reasonable steps to bring the contractual terms of the exclusion of liability to the plaintiff’s attention, and that the plaintiff was provided reasonable notice of its terms. As such, the exclusion of liability policy was held to be sufficient to exclude liability for the defendant’s negligent conduct.
Although each case will turn on its own facts, the court’s willingness in this case to uphold the exclusion of liability policy is an encouraging development for the defence of ski hill and other high risk leisure activity claims.