Warnings for Winter Warriors

We are now well into another exceptionally cold winter. While freezing temperatures and mountains of snow may make many people want to stay indoors, others race outside to take advantage of the ideal conditions for winter activities. This blog post will discuss the case of Crocker v. Sundance Northwest Resorts Ltd., a decision from the Supreme Court of Canada that involved an intoxicated person who entered into an inner tubing competition organized by a ski resort. Unfortunately, the participant suffered a serious neck injury during the competition, which rendered him a quadriplegic.

Issue for the Court

The issue the Court had to decide in this case was whether the ski resort had a positive duty to take steps to prevent a visibly intoxicated person from competing in the tubing competition. One important consideration the Court took into account was the fact that the staff and management at the ski resort knew that the plaintiff, Mr. Crocker, was heavily intoxicated but took no steps to prevent him from entering the competition when they ought to have known that allowing him to participate would pose a greater risk to him and be dangerous.

Duty and Standard of Care

The Court relied on the findings from several other cases that found that there is an obligation not to place another person in a position where there is foreseeable risk the person could suffer injury. In this case, the Court determined that the ski resort was liable for the following reasons:

  1. It had organized a dangerous competition in order to promote its business and increase its profits;
  2.  The ski resort had served the plaintiff alcohol and knew that he was intoxicated; and
  3. Numerous measures were available to the ski resort to prevent the plaintiff from continuing the competition, such as disqualifying him when they found out he was intoxicated, but they failed to do so and allowed him to continue.

Voluntary Assumption of Risk and Waivers of Risk

The ski resort argued that Mr. Crocker voluntarily assumed the risk of participating in dangerous activity, and therefore, they should not be held responsible. The Court rejected this argument as the plaintiff was intoxicated and could not have voluntarily consented to the risks involved.

The ski resort also argued that Mr. Crocker had signed a waiver prior to entering the competition which waived his right to sue in the event he was injured. The Court pointed out that while a waiver can in some cases serve as a defence to a claim in tort, this was not an appropriate defence in this case because it was not specifically brought to Mr. Crocker’s attention, he did not read it, and he signed it thinking that it was merely an entry form.

Conclusion and Recommendations

While voluntary assumption of risk and waivers have been upheld in other cases, they did not in this case. This is largely due to the intoxicated state of the plaintiff that was known by the ski resort, who also had served him throughout the day. Although this was an important legal victory for Mr. Crocker, he was rendered a quadriplegic as a result of these tragic circumstances.

Winter sports and activities can be a lot of fun, however, if you are planning to participate, please do so with a clear mind, proper gear, and with safety as a priority. If you are injured as a result of a winter activity, we highly recommend speaking to an experienced personal injury lawyer in order to evaluate whether you have a case – regardless of any waivers that may have been in place. For establishments that organize these activities, a well-informed and attentive staff will help keep patrons and participants safe.

To the winter warriors – stay warm, be safe and have fun!

Acknowledgements to Nima Azizi, Student at-law with Avanessy Giordano LLP, for the research efforts and co-writing of this blog post.

Written by

Michael Giordano is a founding partner of Avanessy Giordano LLP. Prior to establishing his own practice, he was a partner of a prominent personal injury firm.

He completed his law degree at the University of Ottawa. Prior to law school, Michael studied English and Law & Society at York University.

Michael is an active member of the Ontario Trial Lawyers Association (OTLA). He was elected Chair of OTLA’s New Lawyers’ Division in 2017 and previously held the Vice-Chair position in 2014 and 2016. Michael was also the 2017 recipient of the Martin Wunder, Q.C. Outstanding New Lawyer Award. In 2018, he was voted onto OTLA’s Board of Directors.

He is a regular contributor to the OTLA blog and has also written articles for The Litigator.