Waiver saves resort from lawsuit

Big White negligent in failing to mark hazard that led man to break his leg

The Okanagan Weekend

Big White Ski Resort was negligent in its failure to adequately mark a hazard that led to a man breaking his leg, but a lawsuit against the company was dropped because of its comprehensive waiver, a judge ruled.

Gary Colin Filingham broke his leg while snowboarding at Big White Ski Resort on March 4, 2013.

He said he was injured when a route from one of the ski runs led him over a sheer 10-foot drop down to a parking lot.

Earlier that morning, Filingham said a rope that sometimes blocks the short cut down to the Solana Ridge parking lot was open, so he and his father went through it and proceeded down a gradual slope in the snow.

Around noon, Filingham said he went through the short cut again, because the rope was still open.

However, the gradual slope to the parking lot was no longer there.

That morning, a witness reported seeing a snow plow clearing snow from the Solana parking lot, which creates a steep embankment into the parking lot, said Justice Elaine Adair in her decision.

An investigation confirmed that at the time of the accident, the rope line at the short cut was open and there was a gap about 16 feet wide.

“The fact that the rope line was open permitted use of the short cut,” said Adair, adding Big White is responsible for clearing snow from the Solana Ridge parking lot.

“In not taking steps after clearing snow in the Solana Ridge parking lot to ensure the rope line at the short cut from Highway 33 was closed, (Big White) Limited failed to take reasonable care and was negligent,” said Adair.

Adair said she did not find Filingham to be at fault for the incident, but as an experienced skier and snowboarder he was well aware of the Big White waiver, or exclusion of liability and assumption of risk, written on the back of his ticket and posted at the resort.

Part of the exclusion reads ticket holders assume “all risk of personal injury, death or property loss resulting from any cause whatsoever including, but not limited to: the risks, dangers and hazards of skiing, snowboarding, tubing, tobogganing, cycling, mountain biking, hiking and other recreational activities.”

Big White clearly intended the incident to be covered by the waiver, said Adair.

“Given the words of the exclusion, it would have been entirely unreasonable for Mr. Filingham to expect BW Limited to be looking out for Mr. Filingham’s well-being.”