IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130910

Docket: 42491

Registry:
Kamloops

Between:

Catherine
Alice Morgan

Plaintiff

And

Sun
Peaks Resort Corporation, John Doe and Jane Doe

Defendants

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment
Summary Trial

Introduction

[1]            
The plaintiff, Catherine Morgan, was preparing to load onto a chair lift
at the ski resort owned by the defendant Sun Peaks Resort Corporation when she
fell.  The approaching chair lift was not stopped in time and she was run over
by it.  She claims to have suffered personal injuries including dislocation of
her right hip as a result.  She brings this claim against the defendant in
negligence and based on the Occupiers Liability Act, R.S.B.C. 1996,
c. 337 [Act], and amendments.

[2]            
The defendant brings this summary trial application seeking dismissal of
the plaintiff’s claim against it.  The defendant says that the standard form
waiver (the “Release”) applying to the plaintiff’s ski pass releases it from
all liability and is a complete answer to her claim.

[3]            
Both parties agree that there is a dispute on the evidence as to whether
or not the chairlift operator moved to stop the chairlift immediately upon
seeing the plaintiff fall, or first ran to assist her, then when the chairlift
was running her over, rushed back to stop it.  Neither side argues that this
factual issue can be decided in this hearing.

[4]            
The defendant submits that even if the chairlift operator was negligent,
which it says he was not, the Release would operate to release it from any
liability for such negligence.

[5]            
The plaintiff says that if the employee who was operating the chairlift
was negligent, there is an argument that the Release would not apply.  This
issue, according to the plaintiff, should go to trial.

Background

[6]            
The plaintiff is a real estate agent who has been a downhill skier since
childhood.  She rates herself as an expert skier.  She has skied at the
defendant’s resort, Sun Peaks, located near Kamloops, B.C., for over 20 years. 
She has loaded at all of the chairlifts on the mountain on many occasions.  The
one exception is the chairlift at issue in this case, which was a new chairlift
on the mountain that had been in operation for a four month period prior to her
accident.  However, she had loaded at the chair, known as the Elevation Chair,
approximately five or six times according to her evidence.

[7]            
The plaintiff had purchased a season ticket at the defendant’s resort
consistently for approximately the preceding 15 years.

[8]            
On her evidence, in the initial years of purchasing a season’s pass, she
had read over the waiver prior to signing it on her behalf and on behalf of her
three dependent children.  She was generally aware that it contained a release
of liability, waiver of claims, and assumption of risks and indemnity
agreement.

[9]            
When buying her ski pass and the ski pass for two of her children in
December 2006, she was presented with the standard form waiver which she
initialled and signed, and allowed her children to initial and sign.  The
Release was a large document on legal size paper.  At the very top of the
Release is a box outlined in red and coloured in yellow, in which there were
these words in upper case:

RELEASE OF
LIABILITY, WAIVER OF CLAIMS,
ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT

BY SIGNING THIS
DOCUMENT YOU WILL WAIVE CERTAIN
LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE

PLEASE READ CAREFULLY!

[10]        
The Release form required the plaintiff to initial directly under that
box, as well as to sign at the end of the Release, which she did.  She was given
an opportunity to read the Release prior to signing it, and she understood that
she was signing a liability waiver.  She knew that her access to and use of the
facilities at the defendant’s resort was subject to the conditions set out in
the Release.

The Accident

[11]        
On the afternoon of March 3, 2007, close to 2:00 p.m., the plaintiff,
her friend Darryl Ketter (“Mr. Ketter”), and Mr. Ketter’s son, Stefan
Ketter (“Stefan”) were skiing and made several runs before deciding to load to
go back up the hill, at the Elevation Chair.

[12]        
The Elevation Chairlift was a fixed grip lift suitable for carrying four
people.

[13]        
There was no one in the lineup ahead of the plaintiff and her skiing
companions.  She was lined up at the wait line with Mr. Ketter on her left
and Stefan to her right, i.e. she was in the middle of the group of three of
them.  After a chairlift had passed in front of them, they moved from the wait
line onto the loading platform in order to move toward the load line, which is
the position passengers are supposed to stop at in order to sit down on the
next chairlift.

[14]        
Something happened as the three moved forward to cause the plaintiff’s
skis to become tied up with Stefan’s skis and she fell.  She was somewhere
between the wait line and the load line.

[15]        
Here the evidence diverges.  The defendant’s chairlift operator that day
was Nick Christian.  He says that when he started to see her fall, he
“immediately” hit the stop button on the control panel.  Nevertheless, it takes
some time for the chairlift to come to a stop and in that time, the next
carrier ran over the plaintiff.  This is when the alleged injuries occurred.

[16]        
Evidence from the plaintiff and Mr. Ketter is that when the
plaintiff fell, the chairlift operator came towards her to help her and catch
the approaching chair.  He attempted to move the chair out of the way to avoid
her but he was unable to do so.  He let it go as it ran over her and he ran
back to the control panel and then hit the stop button.

[17]        
The plaintiff’s theory of the case suggests that the outcome may have
been different if the operator had pressed the stop button immediately rather
than trying to come to the plaintiff’s assistance first, as the chairlift would
have stopped before it hit her.  The defendant says the outcome would have been
the same and the approaching chairlift would have still run her over because
this heavy equipment cannot be stopped on a dime.

[18]        
Regardless, even if there was negligence on the part of the chairlift
operator, which the defendant denies, the defendant says the Release applies to
release the defendant from any liability.

Issues

[19]        
The defendant frames the issue on this application as follows:

(a)           
whether the plaintiff is bound by the Release she signed on December 9,
2006;

(b)           
whether the terms of the Release are sufficiently broad to encompass a
claim in negligence advanced by the plaintiff against the defendant.

[20]        
The plaintiff did not advance any argument that the issues were
otherwise.

Analysis

Is the Plaintiff bound by the Release?

[21]        
The Occupiers Liability Act sets out the duty of care owed by an
occupier to persons entering onto its premises.  It permits an occupier to
exclude its duty of care by express agreement or by express notice.  The Act
requires that where the occupier chooses to exclude its duty of care, the
occupier shall take reasonable steps to bring the exclusion to the attention of
the person.  This is set out in s. 4(1) of the Act, which provides:

4(1) Subject to subsections (2),
(3) and (4), if an occupier is permitted by law to extend, restrict, modify or
exclude the occupier’s duty of care to any person by express agreement, or by
express stipulation or notice, the occupier must take reasonable steps to bring
that extension, restriction, modification or exclusion to the attention of that
person.

[22]        
The evidence is clear that the defendant did bring to the plaintiff’s
attention the exclusion of liability as set out in the Release.

[23]        
The form itself is worded in a size of font that is easy to read.  The
warning that it is a release of liability and needs to be read carefully is at
the top of the page in large bold type, in a box which is highlighted in yellow
and outlined in red, with a line for initials under it.  This is in addition to
the full signature lines at the bottom of the Release.  The Release is a
stand-alone page, not hidden inside any other lengthy contract.

[24]        
The cases are clear that it is not necessary for the party relying on
the release to prove that the person who signed the document actually read it
first. In Karroll v. Silver Star Mountain Resorts Ltd. (1988), 33 B.C.L.R.
(2d) 160 (S.C.) [Karroll], a similar direction at the top of the release
was considered by McLachlin C.J.S.C. as she then was.  The Court concluded that
the form of the Release itself was sufficient to bring the nature of the
document and the need to read it to the attention of the person signing it.  Similar
conclusions have been reached in other cases involving releases and ski passes,
such as in Dawe v. Cypress Bowl Recreations Ltd., [1993] B.C.J. No. 2892
(S.C.) [Dawe]; McQuary v. Big White Ski Resort Ltd., [1993]
B.C.J. No. 1956 (S.C.) [McQuary].

[25]        
The employee of the defendant who presented the Release to the
plaintiff, and obtained her signature, provided affidavit evidence.  She
explained that she did not specifically recall this particular Release and
plaintiff, but that she was trained to present the release to every guest with
a standard introduction, and always did so.  According to her evidence, that
standard introduction explained that what was being presented was a release of
liability or waiver which all season’s pass applicants were required to sign,
and asked the person to read the waiver and complete it and sign it.  She then
would give the guest an opportunity to read the release agreement and answer
any questions about it.

[26]        
As I have already noted, the plaintiff does not contest that she knew
she was signing a release agreement.

[27]        
I find that the defendant took reasonable steps to bring the Release to
the attention of the plaintiff.  I conclude that the plaintiff is bound by the
terms of the Release.

Does the Scope of the Release Encompass the Claim in Negligence Advanced by
the Plaintiff against Sun Peaks Resort Corporation?

[28]        
The focus of the factual dispute on liability, on the evidence before me,
was whether or not the chairlift operator was negligent in not moving quickly
enough to press the stop button on the chairlift when he saw the plaintiff fall
in the loading area.

[29]        
The defendant argues that its employee was not negligent, but that even
if he was, the scope of the Release was broad enough to encompass any such
negligent conduct on his part.

[30]        
The Release describes the defendant and its directors, officers,
employees, agents, contractors, and representatives as “THE OPERATORS”.  In the
release section of the Release, it states that in consideration of the
Operators accepting the application for a season pass and permitting the use of
their facilities and property, including use of the lifts, the party signing
agrees as follows:

1.         TO WAIVE ANY AND ALL CLAIMS
that I have or may in the future have against THE OPERATORS AND THE PROVINCE,
and its directors, officers, employees, agents, guides, instructors,
independent contractors, sub-contractors, representatives, sponsors, successors
and assigns (all of whom are hereinafter collectively referred to as “THE
RELEASEES” ), and TO RELEASE THE RELEASEES from any and all liability for an
loss, damage, expense or injury including death that I may suffer, or that my
next of kin may suffer resulting from either my participation in any
recreational activities in the controlled recreational area, or my presence
around the recreational activities in the controlled recreation are, DUE TO ANY
CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY
STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE
OCCUPIERS LIABILITY ACT R.S.B.C. 1996, c. 337,  ON THE PART OF THE
RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO
SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF ANY RECREATIONAL
ACTIVITIES IN THE CONTROLLED RECREATION AREA REFERRED TO ABOVE.

[31]        
As noted, the Release refers to the releasor’s “participation in any
recreational activities in the controlled recreational area” or presence around
those activities.  At the top of the Release, the term “recreational activities
in the controlled recreational area” is defined as follows:

DEFINITION: In this
agreement, the term “recreational activities in the controlled recreational
area" shall include all activities or involvement in any way connected or
associated with lift accessed & non-lift accessed activities within the
controlled recreational area; including but not limited to skiing,
snowboarding, telemark skiing, cross country skiing, golfing, hiking, sight
seeing or mountain biking throughout the controlled recreation area or with
orientation, instruction, training or guiding given by THE OPERATORS.

[32]        
Furthermore, the Release provided that the releasor assumed certain
risks.  In a section headed “Assumption of Risks”, the Release provided:

ASSUMPTION OF RISKS: I am aware that recreational activities
in the controlled recreational area involves many risks, dangers and hazards
including, but not limited to; boarding, riding or disembarking lifts; changing
weather conditions; exposed rock, earth, or other natural or man made objects;
trees, tree wells, tree stumps and forest dead fall; changes or variations in
the terrain which may create blind spots or areas of reduced visibility;
changes or variations in the surface or sub-surface; streams, creeks; collision
with lift towers, fences, equipment, vehicles or structures; collision with
other participants, spectators or bystanders; negligence of other participants,
spectators or bystanders; and NEGLIGENCE ON THE PART OF THE OPERATOR INCLUDING
THE FAILURE ON THE PART OF THE OPERATORS AND THE PROVINCE OR ITS STAFF TO
SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF RECREATIONAL
ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA.  I am also aware that the risks
dangers and hazards referred to above exist throughout the controlled
recreational area and that many are unmarked.

I AM AWARE OF THE RISKS, DANGERS
AND HAZARDS ASSOCIATED WITH RECREATIONAL ACTIVITIES IN THE CONTROLLED
RECREATIONAL AREA AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS
AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND
LOSS RESULTING THEREFROM.

[33]        
On its face, the Release is very broad.

[34]        
The Release specifically identified the risks of boarding, riding, or
disembarking the lifts. It excluded liability resulting from the releasor’s
participation in “recreational activities in the controlled recreational area”
which included activities or involvement in any way connected or associated
with lift accessed and non-lift accessed activities the Release covered.  It
also excluded liability for the negligence of the Operator and its staff,
including in safeguarding the releasor from the risks, dangers and hazards of
recreational activities in the controlled recreational area, which as defined,
included activities associated with lift accessed activities.

[35]        
However, the plaintiff relies on an exception clause in the Release set
out at the end of the release terms and just prior to the signature box, which
reads:

It is understood and agreed that
this Agreement shall not apply in respect of injuries resulting from mechanical
breakdown or failure of ski lifts, tows, or any related equipment.

[36]        
The key issue before me on this application is whether the above exception
in the Release applies here.  In other words, if the employee operating the
chairlift did so negligently, could that conduct fit within the description “mechanical
breakdown or failure of ski lifts, tows, or any related equipment”?

[37]        
The plaintiff argues that the failure of the operator to stop the
chairlift properly could be broadly construed as within the meaning of “failure
of ski lifts”.  The defendant argues that it clearly does not and that the
exception clause is related only to equipment failure, not employee error.

[38]        
This is an interpretation issue only.  Neither side has any comparable
case which considered this issue, nor did either side present any law on
contractual interpretation which might apply.  They both simply took the
position that it was obvious from the plain language of the agreement or, in
the case of the plaintiff, at least sufficiently ambiguous to be read in favour
of the plaintiff.

[39]        
The commercial context of this Release needs to be considered.

[40]        
It is an agreement in relation to use of a ski hill.  The employees
working on ski hills who are most likely to interact with users of the ski hill
are commonly referred to as lift operators.  The Release defines the defendant
and its employees as the Operators, and excludes liability for their
negligence.  It is clear that the broad language of the Release is intended to
cover the conduct of chairlift operators employed by the defendant, unless
otherwise within the exclusion clause.

[41]        
Also, the commercial context is such that whether a beginner skier or,
as this plaintiff was, an experienced skier, it must be evident to the user of
a ski hill that there are dangers associated with getting on and off a chair lift. 
This danger was brought home to the releasor in the form of the Release.  The
first listed risk identified in the Release is that of boarding, riding, or
disembarking lifts.

[42]        
The exclusion clause relied on by the plaintiff does not refer to
conduct of any employee.  It refers to mechanical breakdown or failure of “ski
lifts, tows or related equipment”.  It appears that the plaintiff does not
argue an employee mistake can be considered mechanical breakdown.  It seems
obvious that what mechanical breakdown means is the breakdown of something
mechanical, namely equipment.

[43]        
The types of failures excluded by the exclusion clause are “failure of
ski lifts, tows, or any related equipment”.  Again, the failure contemplated by
the clause is a failure of equipment.  Employees are not equipment.  Failure of
an employee is not failure of equipment.

[44]        
The nub of the issue is this: if a chairlift fails to stop when it
should stop to avoid injury, can it be considered a failure of the lift within
the meaning of the Release exclusion clause, even if this failure was caused solely
by the negligence of an employee failing to operate the lift properly?

[45]        
While equipment failure and human failure are two different things, I
can conceive that human failure can lead to equipment failure.  An example of this
hypothetical fact pattern would be where an employee failed to perform regular
maintenance on a chairlift, including tightening or checking the fasteners
attaching the chair to its cable, the fasteners then loosened and fell off, and
the chair then disengaged from the cable, injuring a skier.  There would be a
good argument that the chair disengaging from the cable would be a failure of
the lift, and would fit within the exclusion clause in the release.  This
argument would appear sound even if the employee negligence led to the ski lift
failure.

[46]        
But on a plain reading of the Release, there has to be some kind of
mechanical breakdown or equipment failure for the exclusion clause to apply,
and human failure alone does not engage the exclusion clause.

[47]        
If the exclusion clause in the Release was interpreted broadly to include
employee error alone without related equipment failure it would significantly undermine
the commercial purpose of the Release.  It would be difficult to reconcile this
interpretation with the whole of the language in the Release.

[48]        
No doubt a large number of the accidents that occur on ski hills occur
during lift loading and unloading. The language of the release in my view uses
plain language to bring home to the user of the ski hill that liability for
lift operator negligence is being excluded if it is not related to mechanical
breakdown or equipment failure.

[49]        
There was one issue raised briefly in the evidence that I will address
equally briefly.

[50]        
The plaintiff and her common law partner queried in their affidavit
evidence whether or not the design of the entry onto the Elevation chairlift
was less than ideal at the time.  The plaintiff has filed evidence that the
design of the loading process for that chairlift has subsequently been
changed.  However, the plaintiff has introduced no evidence to suggest that the
defendant fell below the standard of care in the design of that particular
chairlift.

[51]        
The defendant has filed an expert report which suggests that the design
of the chairlift met all applicable standards.  There are some issues as to
whether the expert opinion in that regard has been properly proven, in that the
expert did not provide all the necessary information to analyze his opinion,
plus he relied on assumed facts that had not been proven in affidavit
evidence.

[52]        
It seemed apparent to me in the submissions before me that the question
of whether or not the chairlift was designed properly was not being seriously
pursued by the plaintiff. There is no suggestion by the plaintiff that there is
any evidence that the design fell below the standard of care, or that the
plaintiff needs time to explore this possibility or gather such evidence. 
Absent submissions to the contrary, the plaintiff must be assumed ready to have
the court address the liability issue on this summary trial hearing.

[53]        
There are numerous authorities where similar claims have been dismissed
due to the court’s finding that a release excluded the claim, determined on a
summary trial basis: see Karroll; Dawe; McQuary; Knowles v. Whistler
Mountain Ski Corp., [1991] B.C.J. No. 61 (S.C.); Goodspeed v. Tyax
Mountain Lake Resort Ltd., 2005 BCSC 1577; Loychuk v. Cougar Mountain
Adventures Ltd., 2011 BCSC 193; Mayer v. Big White Ski Resort Ltd.,
[1998] B.C.J. No. 2155 (C.A.)

[54]        
Given the lack of evidence, I do not find it necessary to resolve the
issue of whether a design error in relation to the chair lift loading might
fall within the exclusion clause of the Release referring to “mechanical
breakdown or failure of ski lifts”.

[55]        
Coming back to the central allegation here, that the employee failed to
press the stop button in time, the plaintiff has advanced no argument that
would explain how that type of alleged employee failure could be considered to
amount to mechanical breakdown or equipment failure.  There is no suggestion of
any evidence that there was mechanical breakdown or failure of equipment.

[56]        
I conclude that the scope of the Release is sufficiently broad to
encompass the plaintiff’s claim against the defendant based on alleged
negligence of the chairlift operator in delaying in pressing the stop button
immediately upon seeing the plaintiff fall.   I am satisfied that this is the
only evidence of possible negligence that has been put forth by the plaintiff,
and that this conduct does not fit within the exclusion clause in the Release.  Given
my conclusion that such conduct would fall within the scope of the Release, the
defendant must succeed in this application.

[57]        
The plaintiff’s claim is therefore dismissed.

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin