Passing The Buck: Risks Willingly Assumed And Liability Apportionment At Resorts

First presented at a Sports Liability Seminar

In the winter months, many Canadians travel to resorts nationwide to engage in snow-related activities such as skiing, inner-tubing, and snowmobiling. After a day of physical activity, many retreat to a restaurant or a bar often conveniently located on, and operated by, the resort. Although these activities are intended to be an exciting pastime, there are inherent and serious risks for all parties involved. As such, it is necessary that resorts be aware of methods to limit their exposure to liability, in the event that a patron becomes injured on resort premises.

Historically, Canadian courts have held that patrons could voluntarily assume all risks associated with their ski-related activities. Unfortunately, courts have recently moved away from this position and no longer accept that patrons are the sole authors of their own misfortune. As it will be illustrated, jurisprudence in Ontario has identified a move away from the voluntary assumption of risk doctrine to a less defence-friendly approach of findings of contributory negligence.

This paper will set out the common law defences available to a resort, its owners, and its insurers, when a patron is injured on their premises. Secondly, it will explore and discuss aspects of tavern liability and its application to resorts. Finally, this paper will provide several recommendations that resorts can enact to assist in limiting their exposure to liability.

Defencesto Resort Liability

The inherent risks involved in recreational activities, such as skiing, give rise to countless personal injury claims each year. Managing the exposure to such claims is a key concern for ski resorts. As illustrated below, courts have limited the ways in which resorts can escape liability.

(a) Voluntary Assumption of Risk

The doctrine of voluntary assumption of risk, or volenti non fit injuria, is a defence based on the concept that no wrong can be done to one who consents.2 In such cases, a plaintiff who agrees to assume all the inherent risks involved with an activity absolves the defendant of the responsibility for injuries arising from the activities.3 In other words, the defendant would not be liable to a plaintiff for the injuries the plaintiff has suffered resulting from risks they agreed to assume. Because this doctrine is a complete bar to recovery, its scope has been limited by the courts: it only applies where a "plaintiff [assumed] both the physical and legal risk involved in an activity".4 In Nettleship v Weston, a 1971 English Court of Appeal case, Lord Denning, M.R., stated:5

Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately, due to the failure of the defendant to measure up to standard of care that the law requires of him [or her].

Following the decision of the English Court of Appeal, the Ontario Court of Appeal has also held that mere knowledge of the risks of an activity is insufficient to trigger this defence.6 The plaintiff must have also consented to the risk and must have waived his or her legal rights arising from the risk, including the right to sue for injuries. The voluntary assumption of risk could arise "either by express agreement or it [could] be implied from the conduct of the parties".7 The English case of Morris v Murray8 is one in which the defence of volenti non fit injuria was successfully applied. In that case the plaintiff and the defendant were drinking alcohol together and decided to then take a flight in the defendant's light aircraft. The plaintiff not only drove to the aircraft but also helped refuel and start it so that the defendant could fly it.

Shortly after take-off the plane crashed, killing the defendant and seriously injuring the plaintiff. The volenti non fit injuria defence was successfully used by the defendant pilot in this case. The English Court of Appeal held that by accepting a ride in the aircraft from his intoxicated friend, the plaintiff had voluntarily assumed the risks and waived his right to damages.

The volenti non fit injuria doctrine is especially significant in sports or other recreational activities that involve purposive risk taking. In order for the defence to be accepted, the premises owner must clearly establish that the patron turned his or her mind "to the question of liability."9 Since it would be difficult to establish implied consent of a party, service providers frequently rely on explicit waivers of liability, which may be included on tickets, signs or standard form contracts.10

It is important to note that section 4(1) of the Occupiers' Liability Act excludes the duty of care that occupiers of a property owe to their guests who willingly assume the risks, which later lead or contribute to the guests' injuries. The Supreme Court of Canada has held that section 4(1) embodies the common law volenti doctrine.11 Section 4 lists circumstances in which a plaintiff would be deemed to have willingly assumed the risks which resulted in his or her injuries. For example, section 4(2) states that a person who is on the premises and intends to commit, or is in the...