Every winter, many accidents occur during the practice of winter sports. While often these incidents are no one’s fault, sometimes it happens that the accident could have been avoided if everyone involved had followed the rules of good conduct.
What can you do if a ski outing takes a wrong turn? In what situations can you be entitled to a civil liability lawsuit?
NB: We will use alpine skiing accidents as an example, but the general principles may apply to other sports, such as snowboarding, cross-country skiing, etc.
Acceptance of risks by the victim
By engaging in certain activities, you implicitly accept a certain degree of risk.
For example, if you decide to go skiing, you know there is a risk of falling and injuring yourself, without someone’s fault. It is an inherent risk of skiing, that is, a risk that is usual, normal and / or foreseeable when practicing this sport.
However, according to article 1477 of the Civil Code of Québec, acceptance of the risk does not necessarily mean that you have waived your right to appeal to the courts against the perpetrator of the damage. The latter may not use your acceptance of risk as a reason to behave recklessly or negligently.
To accept a risk, you must be aware of its existence, it must be foreseeable and it must not result from a fault committed by a third party.
In order to assess how well you have truly accepted the risk, the courts will look at your level of experience and competence, as well as certain other circumstances such as the presence and quality of warnings about the potential dangers of the activity. Thus, an experienced skier, who knows the slope and who masters the sport well, will have an easier time predicting the risks associated with reckless driving than a beginner.
However, please note that just because this is your first time on a ski slope doesn’t mean you will be forgiven. You should pay attention to warnings and safety instructions, and you should preferably be accompanied by an experienced person.
The three criteria of civil liability
To be entitled to a civil suit, you will have to prove the three elements of civil liability: fault, damage, and the existence of a causal link between the latter two.
Article 1457 of the Civil Code of Québec provides that everyone must behave in accordance with certain rules of conduct and without causing harm to others. Otherwise, the person at fault will have to repair the damage caused. In these cases, we are talking about extra-contractual liability, according to which a duty exists even without a contract.
Then, under article 1458 of the Civil Code of Québec, when there is a contract, the parties must respect the commitments entered into. For example, the ski resort that sells you entrance tickets implicitly agrees to take all reasonable steps to ensure your safety, and you agree to ski carefully and in accordance with safety instructions.
For example, if there is a breach on the part of another skier or the ski resort to this duty to act “as a good father”, the presence of a fault can be established, with or without a contract. Next, you will have to demonstrate the existence of harm, whether material, bodily or moral. Finally, you will have to prove that the fault committed by the perpetrator of the damage is the direct cause of the damage you have suffered.
The responsibility of the owner of the ski center
There is no presumption of responsibility of the ski resort towards you. However, they have an implicit obligation to ensure that safety measures are in place in accordance with the standards applicable to their type of establishment, and that runways are free of traps and traps.
It is important to note that the ski center does not have an obligation to protect you from any risk. Indeed, it is not a question of preventing any possible danger, but any foreseeable danger.
On the other hand, the centre would be responsible if, for example, runways or chairlifts were poorly maintained or monitored or if there was no warning about safety standards. Please note that a sign with a hazard warning is not in itself sufficient to exclude the centre’s liability.
Your responsibility as a skier
You have a duty to be careful when taking part in a risky sport.
This means that you must respect the safety instructions as well as the rules of the ski center, and you must take every reasonable precaution to guarantee your own safety and that of those around you.
If you fail to do so, you may be held liable, in whole or in part, for the harm you have suffered.
The responsibility of another skier
Other skiers on the slope have the same duty as you: they must behave carefully, in compliance with the rules of good conduct.
If the skier is excessively aggressive, does not comply with safety rules and standards or intentionally injures you, he will be held responsible for the harm you have suffered.
Claims for compensation following a skiing accident
Have you suffered any harm as a result of a skiing accident or a similar winter sport? If you think you want to take legal action, be sure to document your case, especially at the medical level.
Keep in mind that the facts and circumstances of each case can greatly vary your chances of success in a civil lawsuit and that a lawyer can help you maximize them. Contact our office now so that we can analyze your file.
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