June 4, 2019 by Greg Meckbach
A warning sign and the plaintiff’s work experience were among the reasons a personal injury lawsuit against Vancouver’s Grouse Mountain Resorts Ltd. has been dismissed.
Jason Apps was catastrophically injured while snowboarding in March, 2016 at Grouse Mountain. The ticket that he bought, as well as signs posted on the property, indicated the customers waive their right to sue the company for personal injury.
In Apps v. Grouse Mountain Resorts Ltd., released May 30, the British Columbia Supreme Court ruled that Apps is bound by the waiver. So the lawsuit was dismissed.
A question before Justice Catherine Murray was whether it is fair or reasonable under the circumstances for Apps to be bound by the waiver.
Apps argued he did not read the waiver that was on his ticket and did not notice a sign in the ticket area warning customers are waiving their right to sue.
If clients occupying property want to use waivers to protect themselves from lawsuits, they must take reasonable steps to draw people’s attention to them, Justice Murray noted, adding whether a defendant actually took reasonable steps to draw attention to such waivers is a point of contention in many lawsuits.
In Grouse Mountain’s case, a sign near the ticket booth did not help the defendant.
“It is unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign. It is positioned away from where the purchaser is focussed in order to make the transaction. The ticket seller is not instructed by Grouse to say anything about the waiver to ticket purchasers,” wrote Justice Murray.
But Apps had gone to the top of the mountain with friends, where they went directly to the terrain park. That was where Apps was hurt. The sign at the entrance to the terrain park is clear and easy to read, Justice Murray found. That sign reads:
“When using the freestyle terrain, you assume the risk of any injury that may occur. The ski area operator’s liability for all injury or loss is excluded by the terms and conditions on your ticket or season pass release of liability.”
Another major reason Apps lost was he had worked at a different resort – Whistler Blackcomb – whose waivers have similar wording to those of Grouse Mountain. One of his duties at Whistler Blackcomb was to witness customers’ signatures on waiver forms.
“While Mr. Apps claimed that he did not read the liability waiver on the forms at his work place he dealt with them regularly. At his examination for discovery he identified his signature on over 35 forms from February 2016,” Justice Murray wrote.
Citing several court cases where waivers were a factor, Justice Murray said when deciding whether a waiver is enforceable, a judge should account for the circumstances of the plaintiff. The criteria would include the plaintiff’s age, level of education and previous experience with waivers of the same or similar recreational areas, she wrote.
Although Grouse Mountain won, the sign near the ticket booth does not seem to have helped the defendant. The notice is hard to read because it is one long paragraph with many commas and semi-colons, Justice Murray wrote. It reads as follows:
“As a condition of use of the ski area and other facilities, the ticket holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing, snowboarding, tubing, tobogganing, cycling, mountain biking, hiking and other recreational activities; the use of ski lifts, carpet lifts and tube tows; collision or impact with natural or man-made objects or with other persons; slips, trips and falls; accidents during snow school lessons; travel within or beyond the area boundaries; or negligence, breach of contract, or breach of statutory duty of care on the part of the ski area operator and its associated companies and subsidiaries, and their respective employees, instructors, guides, agents, independent contractors, subcontractors, representatives, volunteers, sponsors, successors and assigns (hereinafter collectively referred to as the “Ski Area Operator”). The ticket holder agrees that the Ski Area Operator shall not be liable for any such personal injury, death or property loss and releases the Ski Area Operator and waives all claims with respect thereto. The ticket holder agrees that any litigation involving the Ski Area Operator shall be brought solely within the Province of British Columbia and shall be within the exclusive jurisdiction of the Courts of the Province of British Columbia. The ticket holder further agrees that these conditions and any rights, duties and obligations as between the Ski Area Operator and the ticket holder shall be governed by and interpreted solely in accordance with the laws of the Province of British Columbia and no other jurisdiction.”