For the thrill of one's life: legal liability for shattered adventures --.
"People engage in dangerous sports every day. They scale sheer cliffs and slide down the sides of mountains. They jump from airplanes and float down white water rivers in rubber rafts. Risk hangs almost palpably over these activities. ... Occasionally, however, the risk materializes and the result is usually tragic."
Crocker v. Sundance Northwest Resorts Ltd., 1988.
I recall at a recent Calgary Stampede watching a long queue snake around the fairgrounds. People had patience for what seemed to me an eternity to drop $80 on a ride that lasted, at most, ninety seconds. This ride was the ejection seat. It hurled thrill seekers high into the air, and tossed them around, by a device operating on slingshot principles. It was fascinating why they would wait this long for a ride so expensive, brief,and dangerous. There was a printed waiver at the pay table which went ignored.
The recreational adventure industry has grown dramatically over the last decade. Adventure activities are inherently dangerous endeavours; this contributes to their allure. Such pursuits include helicopter skiing, white water rafting, bungee jumping, ski racing, sky diving, snowmobiling, rock climbing, scuba diving, and trans-oceanic sailing. They test the participant against nature in forms that are unusual or intense, or both. The margin of error is often slim.
These adventure activities often yield a sense of rare accomplishment, although participation may itself represent the accomplishment. The radicalization or hazardization of what have, up to now, been regular sports such as skiing by sharply escalating the physical challenge to the participant, have recently developed as extreme sports. They are all exciting and perilous ventures, with numerous associated risks.
These risks are often the reason that recreational operators make these activities available, and why throngs of people are attracted to take part in them. As their popularity increases, so do the numbers of mishaps and lawsuits. There are unique legal issues relating to operator negligence and transer of the risk of injury or death to the participant.
Negligence in Adventureland
It seems almost contradictory to consider how operator negligence and adventure activity can be reconciled. Few daring guts and glory people would be expected to sue an adventure operator if something went wrong. After expressly waiving liability, one might think that they would accept all risks. Nevertheless, many of them if injured, will sue the operator because the activity should have been made safer. Damages awarded may include compensation for the pain and suffering associated with the physical injuries, mental or emotional distress, loss of employment income (short and long term), and any expenses incurred as a direct result of the injuries.
We turn now to application of general negligence principles against recreational adventure operators. The law has not directly answered the question as to whether the operator's duty of care increases with the risk of the activity, or whether the participant voluntarily accepts that increased risk.
In its recent decisions, the Supreme Court of Canada has frequently decided in favour of injured plaintiffs, even where the facts do not present a compelling basis for fault on the part of the operator. This lends force to the view that tort law has evolved away from a system of corrective justice (i.e., remedying wrongs through the fault of another) and more toward a system of compensatory justice where the injury sustained by the plaintiff is the focal point of the judicial exercise. Therefore, although there are established legal parameters for liability, the court will be more apt to find negligence on the part of the operator where a serious injury has occurred.
This is a warning to adventure operators that greater care must be demonstrated in inherently dangerous activities offered to the public. Such care would be manifested, for example, in standard operating procedures; selection, training, and supervision of employees; information and briefing of the consumer; the language and process of dealing with any waiver or release of liability; the operator's judgment calls; back-up procedures; and the equipment supplied.
Once this duty of care is found to exist, the amount of care required will depend on the circumstances. The greater the risk of injury, and the greater the foreseeable injury, the greater the care expected on the part of the person owing the duty of care.
The general amount of care required by the law is defined in terms of what an "average, reasonable, prudent person (adventure operator) would do in similar circumstances". No one should expose another to an unreasonable risk of harm, especially serious harm. The foreseeable risk of serious harm in adventure activities is clear. This level of care is established by evidence of industry practice and judicial intuition as to reasonableness.
Other factors such as statutory obligations, operator explanations, alcohol or drug ingestion, notice of warnings, age and mental and physical capacity of the consumer, whether the activity was carried on for a profit, and the knowledge and experience of the operator may all affect court decisions. An employee or contractor of the operator may also be liable, in addition to the commercial enterprise. Moreover, in order to reduce its damages, the adventure operator might attempt to show that the participant contributed to the negligence. To do so, it would try to show that the participant was also negligent in some respect which contributed to the injuries sustained. Scurfield v. Cariboo Helicopter Skiing Ltd., 1993 is an example of the Court's reluctance to hold operators liable for extraordinary risks such as avalanches, especially in the face of participants' refusal to follow instructions.
Voluntary Assumption of Risk?
With an increased likelihood for personal injury and more serious injury than with other recreational pursuits, both sides of the transaction, the operator and the consumer must deal with the issue of legal responsibility. In the past, when participants have been injured in volunteer sporting activities, the legal liability has traditionally rested with the injured party, on the basis of volenti non fit injuria (voluntary assumption of risk).
Volenti non fit injuria (Latin for "to one who is willing no harm is done") may be a full defence to intentional or unintentional wrongdoing. It is a complete barrier to the injured person recovering damages. Evander Holyfield, for example, can be taken to consent to being hit in the boxing ring by Mike Tyson. It is not likely, however, that he consented to having his ear bitten off in the ring, as this is not a regular risk of boxing.
The same applies to negligence of the thrilling, but dangerous, recreational activity. The onus of proof is on the party asserting this defence of voluntariness. If a participant, once told of the risks associated with an activity, volunteers to accept them and is subsequently injured, any legal action in negligence will be met by the complete defence that the defendant is not legally responsible for compensation. The Canadian courts are inconsistent on whether the participation in inherently dangerous activities automatically constitutes a voluntary assumption of all risk. Adventure operators should proceed on the basis that such voluntary assumption of risk is not presumed. In certain instances, it will be implied. In most cases, more than inherent danger will need to be shown to absolve an adventure operator of liability for injury. The operator will attempt to assert a properly executed and understood waiver of liability.
The Supreme Court of Canada looks for evidence that legal risk is accepted by participants, along with the physical risk for volenti defences to be successful (Crocker v. Sundance Resorts, 1988). The following test was adopted:
"It is submitted that the key to an understanding of the true scope of the volens maxim lies in drawing a distinction between what may be called physical and legal risk. Physical risk is the risk of damage in fact; legal risk is the risk of damage in fact for which there will be no redress in law. ... To put this in general terms, the defence of volens does not apply where as a result of a mental process the plaintiff decides to take a chance but there is nothing in his conduct to show a waiver of the right of action communicated to the other party. To constitute a defence, there must have been an express or implied bargain between the parties whereby the plaintiff gave up his right of action for negligence."
In Crocker, the most recent case on this point from the top court, the participant had two days to review and consider a signed waiver before competition. On competition day, he voluntarily consumed large amounts of alcohol, some of his own and some purchased at the ski hill bar. The activity, an inner tube race down a steep mogulled run, was fraught with risk of injury. The unanimous court refused to enforce the waiver because the operator was not able to show that the Crocker had voluntarily accepted the legal risk and the physical risk. This suggests that taking two days to think about a waiver and sign it, does not alone provide evidence of a "bargain between the parties whereby the plaintiff gave up his right of action for negligence". The operator has to do more than obtain the consumer's signature on the waiver.
An interesting legal question remains as to whether the operator's duty of care for the participant increases in proportion to the increase in bodily risk presented. If so, can that risk for the inherently dangerous element of the activity be transferred to the participant? In other words, can the voluntary assumption of risk (volenti) doctrine be extended to include adventure activities? Are high risk activities to be legally distinguished from ordinary sporting accidents?
Waivers: Contractual Allocation of Risk
Adventure operators may be liable in the law of both tort and contract to those participating in and injured by adventure programming. An operator impliedly or expressly contracts to exercise a reasonable degree of skill and diligence in serving the consumer, and may be held liable for damages for failing to meet those responsibilities.
Even in thrill activities, it is unlikely that the court would find that one readily consented to this risk. A waiver, where applicable, is a contractual defence in that it supplies evidence of the voluntary assumption of risk. An enforceable waiver of liability can serve to transfer the risk to the participant.
This legal basis for the waiver as a defence is freedom of contract. The parties to any transaction may freely negotiate and agree to any terms, including waiving one's right to sue if the other is negligent. If adventure operators want control over who will bear the burden of an accident, particularly to shift or transfer it to the consumer, they will choose the protection of a carefully-drafted waiver of liability. The term waiver is synonymous with release, disclaimer, exculpatory clause or exemption clause.
If the participant assents to a proper waiver agreement with sufficient process-oriented safeguards, such as notice of the waiver terms, the adventure operator should have commercial confidence, akin to insurance, that the risk of injury is effectively transferred and little or no liability risk endures.
Content: Fundamental Breach
Waivers and all contractual attempts to exempt or minimize one's own liability are strictly interpreted by judges. This is especially true if the party trying to escape liability is a business and the party accepting the legal risk is an individual. This is justified by the reality that waivers are usually take it or leave it standard form documents over which the participant invariably is in an inferior bargaining position. The terms of the waiver must be explicit and precise. If they are not, the waiver may be unenforceable. Even then, the best an adventure operator can expect is waiver of liability for ordinary negligence. Gross negligence or wilful misconduct will rarely be excused, even with an otherwise legally unassailable waiver.
In Dyck v. Manitoba Snowmobile Association, 1985, a waiver set out to shield a snowmobile association against liability arising from a snowmobile race. Dyck was injured when a third party collided with him. He argued that the signed waiver in the entry form, which was worded in the form of an indemnity, was not enforceable due to its form, and on the grounds that it was unfair, unreasonable, and inapplicable given its circumstances.
The Supreme Court of Canada found the waiver valid, exonerating the snowmobile association from liability for the accident. The Court reasoned that the context of the exclusionary clause unambiguously revealed the parties' intention.
The Supreme Court of Canada further considered whether the circumstances were such that they constituted an unusual or special case which would, in effect, constitute a fundamental breach under the contract or was too unfair and unreasonable to be enforced. Traditionally, fundamental breach and reasonableness have been theoretically approached as two distinct concepts. The court wrote, "whether the doctrine of fundamental breach is confined to questions of construction, or whether it involves the power of a court to declare that certain contractual arrangements are so manifestly unfair and unreasonable as to be unenforceable, it is unnecessary to consider. The central fact is that a waiver clause of the kind in issue in the present case does not appear to be unreasonable."
The Court did not find that the non-profit snowmobile association was an organization which had such one-sided bargaining strength that it could take unfair advantage of another party, which would have brought about an unconscionable and unenforceable transaction. Thus, a distinction was made between a purely commercial context, and an essentially social context. The Supreme Court concluded that Dyck "knew, or should have known, that snowmobile racing is a dangerous sport and he voluntarily participated in it". As the activity was inherently and obviously dangerous to the participant, and as it was not unreasonable for a party to desire to protect itself from liability, it was not appropriate to strike down the waiver.
Other content issues include plain language in the waiver, clear acknowledgment of participant understanding and acceptance that one will not be able to maintain any lawsuit in court. The waiver should explain all of the foreseeable physical and legal risks of the activity. It should state that the operator may be negligent and the participant accepts that risk. Small or faint print, buried deep in long legalistic standard forms, or on the back of pages or in other documents (such as policy manuals or on the Internet), are all factors likely to render the waiver unenforceable.
Process: How the Waiver is Established
Judicially-imposed procedural safeguards serve to ensure that the participant does voluntarily accept transfer of the operator's legal risk.
Usually the contents of the waiver must be specifically made known to the participant at the time the activity contract is made. It may not be enough to have it in writing and place it before the participant to sign. The onus will be on the operator to demonstrate that the participant knew the essence of the waiver. Unilateral passive notice of the waiver, such as on a sign, may not be enough to transfer serious legal risk. A practice of requiring the waiver to be individually presented, explained, and signed by the participant goes a long way toward obtaining the participant's consent to accept the risk.
In Karroll v. Silver Star Mountain Resorts Ltd. 1988, the operator argued that an individual who sustained injuries as a result of competing in a downhill skiing competition was prevented by a waiver and indemnity agreement from recovering damages for her injuries. The plaintiff maintained that the resort was negligent in failing to keep the race course clear during the competition.
Prior to competing, Karroll signed a release in which she waived liability for any injuries sustained during the competition on the part of Silver Star resort and its agents. Her signed release stated the following:
1. the rules governing the Event are solely for the purpose of regulating this Event and it remains the sole responsibility of me to act and govern myself in such a manner as to be responsible for my own safety;
2. I am aware of the risks inherent in participating in the event; and,
3. I assume the risks and waive notice of all conditions, dangers or otherwise, in or about the Event.
The release also contained a clause that said Karroll read the rules and agreed to "RELEASE, SAVE HARMLESS and INDEMNIFY Resorts and/or its Agents from and against all claims, actions, costs and expenses and demands in respect to death, injury, loss or damage to my person or property ... in connection with taking part in the Event".
The British Columbia Supreme Court asked whether she was bound by the release. She did not read the body of the release, and could not remember if she was given an opportunity to read it. She had participated in the same competition in each of the preceding four years, and had explained to a friend who was also competing, that the release barred participants from suing the operator if they were injured, and had to be signed if she wished to participate in the race. The court stated that, "[i]n the usual commercial situation, there is no need for the party presenting the document to bring exclusions of liability or onerous terms to the attention of the signing party, nor need he advise him to read the document. In such situations, it is safe to assume that the party signing the contract intends to be bound by its terms."
An exception to this general principle is encountered where there are special circumstances which demand the waiver be brought to the participant's attention. For example, where the waiver is misleading, or contains arduous or contentious language, the operator relying on it may be required to take reasonable steps to bring the contents to the attention of the participant. However, in absence of these special circumstances, there is no general duty that an exclusionary clause be explained to the participant.
The court decided that Karroll signed the release with the understanding that it was a legal document affecting her rights. The header on it stated, "RELEASE AND INDEMNITY - PLEASE READ CAREFULLY". This was sufficient to bring the release, and its purpose, to the attention of a reasonable person. It was drafted in plain language. No special circumstances took away from her intention to agree to it. The waiver was valid.
All commercial operators of inherently dangerous recreational activities should likewise pay attention to other circumstances surrounding the incorporation of the waiver into the transaction. The participant should have time and opportunity to ask questions and get clear, comprehensible and consistent explanations from the operator. Alcohol, drugs, and naste should not be factors attending the execution of the waiver. Specific attention and notice should be drawn to it. For example, bold print on the front page is effective.
A few days to think about the impact of the waiver and consult independent advice, including legal advice, may be helpful to the operator's cause. In fact, giving time for reflection and independent advice, and indicating that expressly on all written documentation seen by participants, is advisable where the nature of the activity permits. The waiver form might also have a signed declaration that the participant has had all questions explained to his/her satisfaction and knows the effect of the waiver. The participant should sign that adequate time has been afforded to consult independent legal advice.
It is essential that the waiver be signed at the time that the main contract for the adventure activity is entered into. To separate the waiver from the contract for the activity itself, runs the risk of having to establish that separate consideration was given to the waiver when it was agreed to. In Delaney v. Cascade River Holidays, 1983, upon the recommendation of friends, the participant Dr. Delaney signed up for a white water rafting trip. A few hours after the contract was made, and just prior to leaving for the raft, Delaney was asked to sign a waiver which released the operator from liability arising from the trip. The Court of Appeal, in a questionable split decision, found the waiver to be part of the main contract and enforceable.
Given the judicial antipathy for waivers, an operator would not want to inadvertently have a judge consider another obstacle to the validity of the waiver. Waivers of liability are strictly interpreted by courts. This means that any benefit of the doubt in interpretation will be granted to the participant.
Over the last few decades, adventure and thrill tourism activities have increased in popularity and availability. Canadian courts have struggled with the question of how much risk of harm, and hence legal liability, should be borne by the activity operator, and how much may be effectively passed on to the thrill consumer. Participants seem to be willing to accept much of the risk of inherently dangerous activities.
What has been the response of law in assigning liability? While some would maintain that inherently dangerous pursuits imply, by their nature, a voluntary assumption of risk on the part of the participants, the courts have been slow to accept that premise. Voluntary assumption of risk can be shown in the absence of a formal, written waiver, but to date this has not generally happened. If courts are reluctant to enforce formal written waivers, it follows that they will be even more apprehensive of such ambiguous circumstantial conclusions.
Even with waivers in place, whether the activity operator took reasonable steps in the circumstances, on its part, to prevent the participant's injury will always be an issue. The content of the waiver cannot amount to taking everything away from the participant who is paying for a skilfully conducted adventure. Factors that will be considered by the court will be the time given to read, understand, and sign the waiver; the influence of alcohol; the language and print used; the profit-making or non-profit nature of the activity; and the party's familiarity with similar clauses through past experience. The written waiver should be seen as the practical legal minimum for proof of the participant's voluntary assumption of risk.
The judicial decisions on this topic are not easy to reconcile. On one hand, the waiver defence of voluntary assumption of risk has traditionally been a long shot defence after a serious injury or death.
On the other hand, British Columbia courts increasingly find in favour of adventure operators where reasonableness and forethought on their part is exercised. It is a growing and competitive industry which the law may look to protect. Participants may be expected to bear more of the risk they seek. Judges expect participants to read waivers they sign and obey rules of the activity. Those who wantonly ignore the instructions or warnings of recreational operators, are generally found responsible for their own fate.
In the 1998 decision of Mayer v. Big White Ski Resort Ltd.. from the British Columbia Court of Appeal, the court was impressed that the waiver form was drafted in "heavy black ink" with headings in "capital letters". The waiver told the participant to write his name and address and asked that he read the document carefully. These were the facts:
"The plaintiff arrived at the head of the line. He stated and spelled his name. He had his photograph taken and he returned to the young woman. She handed him the `piece of paper' and said `You have to sign this'. The plaintiff replied: `What is this?' She responded: `You have to sign this to get your season's pass'. The plaintiff states that he signed the paper without looking at it and handed it back to her. The young woman received it and again returned it to the plaintiff saying `You have to print your name and address here' and she pointed to the lines on the Release just below the two and one-half inches of dark type... In compliance with that direction and again without reading the Release the plaintiff printed his name and address and handed it back to the young woman. The plaintiff then received his pass."
The plaintiff sought to maintain that he did not appreciate the nature and content of the waiver. The Court of Appeal decided, nevertheless, that the waiver was binding. Such is the trend in this industry.
Peter Bowal is professor of law in the Faculty of Management, University of Calgary, in Calgary, Alberta.