Canadian court finds snowboarder negligent for colliding with skier in blind spot

May 16, 2010

Negligence, Uncategorized

http://www.canlii.org/eliisa/highlight.do?text=gregorowicz+v+lee&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/bc/bcsc/doc/2010/2010bcsc478/2010bcsc478.html

The Supreme Court of British Columbia found on 9 April 2010 a snowboarder liable for an accident in which he collided with a young child at Grouse Mountain Resort in Vancouver, BC. 

Williamson J held in Gregorowicz v. Lee (2010 BCSC 478) the defendant snowboarder James Lee 75% contributorily negligent and – in an interesting twist to the case – the infant plaintiff’s father Peter Gregorowicz 25% contributorily negligent.

The judge concluded Lee was either boarding too fast or was not paying proper attention when he collided with his nearly five year old son, Patrick Peter Gregorowicz, who sadly sustained a spiral fracture of the right tibia and a fracture of the right fibula as a result. Williamson J also found the father liable for leading his son across the slope ‘so close to the dip that a person above it would not be able to see’ anyone below.

Although not articulated in the ruling, the challenge of the court was to balance inherent risk and reasonableness in the circumstances of skiing and snowboarding on an alpine hill whilst also accounting for the supervision of a five year old child.

Skiing and snowboarding are not safe. The risks, dangers and hazards are clearly identified in Grouse Mountain Resort’s ‘Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement’ to which skiers and snowboarders accept as well as the possibility of injury and death. These risks include ‘variation in the terrain which may create blind spots or areas of reduced visibility.’

The judge made no mention of the Alpine Responsibility Code – a non-binding voluntary code posted at ski resorts throughout Canada and the United States. The code states that ‘There are elements of risk that common sense and personal awareness can help reduce’ and asks users to adhere to it’s 10 rules.

The first two points of the Code buttress the judge’s analysis:  1. Always stay in control. You must be able to stop, or avoid other people or objects. 2. People ahead of you have the right of way. It is your responsibility to avoid them. Lee clearly was in violation of these points and could not avoid Gregorowicz.

The third point deserves some attention however, 3. Do not stop where you obstruct a trail or are not visible from above. This is significant because Gregorowicz’s father opined that he thought Lee failed to see Patrick because his son was below the dip.

That such a blind spot exists on a run is not unusual. It is the responsibility of a parent (or instructor) to mitigate unreasonable risks and to minimize the exposure of a novice skier to such areas. Just as a parent ought to ski/board wide around a corner and not take the inside track – so as to be more visible to skiers upslope – so too should every reasonable effort be made for a novice skier to either not be led into blind spots or skirt wide around dip features which obstruct them from being seen by those skiing/boarding upslope.

Returning to the case, the accident occurred in a dip – a concave feature where the slope rolls away – which obstructs skiers and snowboarders upslope to see what is below in the dip. Williamson J held Lee 75% liable for colliding with Gregorowicz in a feature which is – for all intents and purposes – rendered temporarily invisible to users of the hill, and Peter Gregorowicz 25% liable for positioning his son in such a feature.

Notwithstanding that Lee ought to have been snowboarding in control at all times, the only way for him to have avoided the collision would have been to either stop at the top of the roll and inspect the dip before continuing or substantively slowing down as he boarded through the feature. From the judge’s analysis, skiers and snowboarders are negligent if they do not use similar evasive maneuvers whenever they approach blind spots – which could include not only dips and rolls but corners and moguls – at a ski hill.

Reasonableness in such circumstances would then mean slowing to such an extent that a skier/boarder would be able to stop on a dime or turn suddenly to avoid a collision with someone who appears out of the blue.

There is little doubt that Lee bears some responsibility for Gregorowicz’s injuries. It is submitted,however, that the judge did not give proper weight to the father’s positioning of his son in a blind spot on the hill and the inherent risks of skiing which include the unlikely (but occasionally very real) possibility of a collision in such a blind spot.

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One Comment on “Canadian court finds snowboarder negligent for colliding with skier in blind spot”

  1. vino Says:

    Sorry Jon, you’re wrong: a parent is not a professional instructor who may have been negligent if he would have been guiding his clients through a dip invisible from above.

    But considering the Code of Resonsibility which are THE guideline for non-negligence, Lee should have been 100% liable: if you can’t see what is ahead of you or behind a roll then you HAVE to slow down or stop and look first. If you go ahead in a manner “I hope no one’s there” then you act negligent as you would driving a car.

    Reply

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