The most common injuries are to knees and wrists, says Rajiv Haté at Kotak Law
For the most part, skiers descend the slopes at their own risk. Nowadays, almost all ski resorts have their guests sign waivers, freeing the resort from liability for injuries.
While they have been declining in recent years, ski injuries are still common. Between 2008 and 2018, 113,560 injuries in the 29 resorts were included in data from the Canada West Ski Areas Association, published in the Journal of Science and Medicine in Sport. For skiers, knee injuries were the most common. For snowboarders, it was wrist injuries.
If an injured skier signs a liability waiver, it does not necessarily mean they will not have a cause of action. It all depends on the circumstances, says Rajiv Haté, a litigator at Kotak Law.
To prove negligence, the plaintiff must first render the waiver invalid. The test for validity has three elements.
First, the court will examine whether the plaintiff knew what they were signing or whether the circumstances are such that a reasonable person would have known they intended to release the resort from liability by signing the document.
Courts have held that by signing the waiver, a person is deemed to have understood it, says Haté. But the resort still must take reasonable steps to bring the waiver to their attention. Courts will examine the contract's length, format, and how long the person is given to read and understand it.
“Is it a one-page document that's in writing that's easy to understand, that is of a font size that is easy to read, or is it just a small waiver on the back of a ticket that's in fine print?”
Courts will also consider the competency of the person signing.
Some courts have said that ski resorts should list the parties being released from liability, including the resort, its employees, contractors, or other parties.
The second element analyses the waiver’s scope. Courts probe the wording to determine whether it is specific enough to cover the injury and not so broad as to be unclear about what rights are being waived.
“It also can't be complicated or unduly lengthy either, where someone would not be able to understand it without a legal background,” says Haté.
At a ski hill, the scope of the waiver should cover skiing, snowboarding, and other such activities but would not extend to an injury sustained slipping on unsalted ice in the parking lot or from a malfunctioning chairlift, he says.
The final element asks whether the waiver is unenforceable because of unconscionability.
Unconscionability is hard to prove, says Haté, and courts typically need proof of inequality between the parties’ bargaining positions and evidence that a substantial unfairness benefited the stronger party.
If the plaintiff persuades the court that the waiver is unenforceable, he says they will then look to the general principles of negligence . These include whether there is a duty of care owed, if the standard of care was breached, the damages resulting from the breach and whether the harm was reasonably foreseeable.
Haté was involved in a ski-resort-injury case where the guests had no waiver to sign. The ticket stated that the waiver was part of the agreement to use the resort, and the user agreed to the waiver by confirming their booking. No signs in the resort indicated that users had foregone their right to sue.
“Our argument was, essentially, that this was not clearly brought to the attention of the person that was participating in the activity, that in order for the waiver to be effective, the person has to know what they're agreeing to.
“If there's nothing that was required to be signed, then now the duty is on the ski resort to bring it to their attention.”
The case did not go to trial. The resort settled.