Court Upholds Release of Claims in Mountain Biking Accident

On June 16, 2017, the BC Supreme Court upheld Whistler Mountain Resort Limited Partnership’s release of claims in the case of a mountain biker who sustained a serious spinal cord injury. The injury occurred on August 28, 2009 at Whistler Mountain’s bike park. Dr. Jamieson was thrown over his handlebars while negotiating a rock feature of the trail and has been confined to a wheelchair ever since. He sued Whistler Mountain, claiming it had negligently failed to warn him of the risk of riding the trail. Whistler Mountain applied to have Dr. Jamieson’s claim dismissed on the basis that it was barred by a release of claims.

Prior to entering the park, Dr. Jamieson signed a 4-page waiver of claims, a key clause of which was outlined in red and highlighted in yellow and released Whistler Mountain from “liability for any loss, damage, expense or injury, including death”. Also, a sign warning of the risk of the particular trail was posted at its entrance. The court held that the release was “comprehensive, clear and blunt” and that “I do not see how any adult with basic reading skills could reasonably believe he or she retained the right to sue whistler if they were injured using the park, even if Whistler were negligent.”

The court dismissed Jamieson’s arguments that he was rushed through the signature process, that he didn’t know he had signed a waiver, and that there was nothing in the ticket that alerted him that the activity carried a high risk of injury. The court ultimately held that the release and the signs placed throughout the park adequately warned Dr. Jamieson of the risk. The court allowed Whistler Mountain’s application and dismissed Dr. Jamieson’s claim.

Although the case does not involve a local government, it serves as a good reminder of the liability protection provided by participant waivers for dangerous activities taking place on land owned or occupied by a local government or at a local government event. The case highlights the importance of having a well-drafted waiver and properly obtaining the waiver from a participant. A release form must be clear and comprehensive, identifying the activity, warning that the activity carries risks and highlighting the key elements of the form. A staff person should take steps to bring the key parts of the form to the attention of the participant and explain to the participant that the release is a legal document and that by signing the release, the participant is waiving rights to sue. Depending on the activity, appropriate warning signs may also be important. Taking these steps can both limit liability and remind participants of the inherent dangers of a particular activity.

Joseph Scafe

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