Canadian judge holds “ski buddy” not liable for death of skier. Buddies assigned by guide in Helicopter on way out does not create a contract
Posted: February 3, 2014 Filed under: Skiing / Snow Boarding | Tags: BC, British Columbia, Canada, Duty of care, Heli Ski, Revelstoke, Ski, Ski Buddy, Ski Resort, Tree Well, Wiegele Helicopter Skiing 5 CommentsThe court found there was no contract between ski buddies, and the defendant skier met his duties to the deceased skier. A tree well is a risk of skiing, and no other skier could have done more than alert the guides when a skier was missing.
The deceased died in a tree well on a helicopter ski trip in Canada. His widow sued his ski buddy for his death claiming he was a“… contractually obligated to stay close to her husband, keep him in sight, and assist or alert guides and other skiers if he observed his buddy in need of assistance.”
The entire concept of a ski buddy is fraught with spatial issues. Rarely do people ski side by side. If you are skiing side by side, both skiers can only occasionally glance downhill. Here, the facts and allegations of the plaintiff argue that the defendant should have skied behind the deceased to keep an eye on him. Would that have not placed the deceased in the same liability position with the defendant?
How do you ski through deep powder and trees and keep an eye on someone’s 100% of the time. Even if you do, how do two people do this for each other? It is physically impossible.
The next issue is normally one guide skis in front of the group and the second guide skis at the rear. No matter what, the time it would take to notify any guide either by waiting and hoping the second guide finds you or by skiing to the bottom guide, which did occur, is lengthy. The heli-ski operator told skiers to stop and yell if they got into trouble?
The most telling part of this article is the deceased was a successful personal injury attorney.
You can find the judge’s ruling dismissing the case here. The facts of the case as set out in the judge’s ruling led to the idea that there was no requirement to ski with a buddy at the time of the fatality. The buddy requirement ended when the group exited from the forest into a logged area. Everyone descended together at that point, and generally, no one tracks anyone else.
This is a Canadian legal decision and the decision, although well written was confusing because Canadian law is different from US law. My analysis may be incorrect in all aspects of the court’s decision. As an example, here is the court’s definition of standard of care in negligence.
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.
Rarely, in US law, is the phrase unreasonable risk of harm used to define negligence.
The court’s statement of the facts also shows a surprisingly quick search and location of the deceased. It took only 4 minutes, based on the radio log between when the search started and when the deceased was found.
The plaintiff argued that the defendant ski buddy owed a duty of care to the deceased by voluntarily taking on the responsibility to look out for the deceased. In order for a claim to be made under Canadian law, the person agreeing to accept the volunteer liability must have some control over the risks. Here the defendant had no control over the risks. Nor was there any evidence that the acceptance of the voluntary role of ski buddy was relied upon by the deceased.
The relationship created between ski buddies did not create a relationship where the volunteer assumed the responsibility over the deceased. Instead, the relationship between the parties was defined by the guides who created the relationship. That meant they ski buddies were to keep each other in visual and vocal contact in the forest and as outlined in a video everyone watched before skiing. The issue of the location of the responsibility, the forest was important. The parties had exited the forest into a logged area where it was generally understood the ski buddy relationship ended.
The ski buddies never spoke to each other so there was no understanding of their roles so no greater requirements were created between the ski buddies. The term ski buddy, as defined by the judge did not create a duty; in fact, the court found a ski buddy is to respect the autonomy of the other ski buddy. Meaning a ski buddy relationship does not mean you give up your skiing to watch the other, you still should enjoy your runs.
Besides the judge’s decision that the timeframe between when the deceased was discovered to not be with the group and when the guides were notified of the fact to not be negligent, the sole issue was contract.
The judge’s conclusions were as followed.
If there was a duty of care between the plaintiff and defendant as a ski buddy, then the defendant met it with his actions.
There was no contract between the parties. There was no contract or contract intention. Even if there was a contract, it ended once the parties exited the forest into the logged area where the accident occurred.
So?
The decision is not as definitive as one would have liked. The decision can also be appealed. However, it is still a great decision for skiers.
The saddest part is the heli-ski guide service created liability, which resulted in this lawsuit against one of its clients. By writing its release so that it not only protected the heli-ski operations but everyone else this would have been avoided.
Here are the articles I based this article on: ‘Ski buddy’ not liable for heli-ski death, court rules and Judge rules “ski buddy” not liable for death. The article describing the suit before the judge’s ruling is ‘Ski buddy’ sued in heli-ski death
What do you think? Leave a comment.
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Mr. Coe was found not guilty due to the fact a contract was not actually signed. With a skiing buddy it is considered more of an accepted practice. I understand why the Mrs. Kennedy filed a claim because she was in search of back pay for medical bills and funeral cost plus loss of income since her husband was the main provider of the house hold. I believe Mrs. Kennedy could have won the case had Mr. Coe pleaded guilty. Mr. Coe had no reason to plead guilty however since he was not an experienced ski instructor and it is physically impossible to keep an eye on your partner one hundred percent of the time. It shows that if you are going to enter into a dangerous activity than you need to sign a waiver or a contract to be able to protect yourself in the court of law.
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What if the surviving buddy said, OK in the helicopter, would have have changed things? You don’t have to have a signed contract to have a contract. Contracts can be oral, they are just harder to prove.
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The widow received $18 M from the estate. She was not going to be poor no matter what.
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My take on this ruling is that it is spot on. After reading through a lot of the information on this case I believed that this accident was unavoidable. Ski buddies appear to be a good concept, but is it really possible to abide by all of the rules while on the mountain skiing? For example, the only way you would be able to keep an eye on your ski buddy the whole time is if you were side by side, and I feel like that would be nearly impossible to do as there are many other elements that can come into play. What if one skier is better/faster than the other? Also if what the plaintiff was arguing would have happened than the defendant would have been at risk just like the plaintiff was, everything just would’ve been flip flopped. The plaintiff in this case also alleged that the search wasn’t done in a proper time frame because the defendant was late in notifying a guide of Mark Kennedy’s absence, but according to the case files and scanners it only took four minutes to locate Mark, and at that point it was already too late. The above points further my reasoning that this instance was just simply unfortunate, and it has happened more than just this time. The skiers are well aware of the risks before beginning the trip. No one person should be responsible for Mr. Kennedy’s death. The case was ruled correctly.
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“The saddest part is the heli-ski guide service created liability, which resulted in this lawsuit against one of its clients.”
I’d say that’s the second saddest part… after the dead skier.
Enjoying your blog!
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