A lawsuit currently being heard in a Vancouver court has lawyers all over watching, especially those involved in the mechanized skiing industry.
Elizabeth Kennedy is claiming her husband Mark’s death in January 2009 was the result of negligence by his ski buddy, Adrian Coe.
Mark died on Jan. 11, 2009, after falling into a tree well while out skiing with Mike Wiegele Helicopter Skiing near Blue River, B.C.
According to court documents posted online by the CBC, Elizabeth Kennedy is alleging Coe was in breach of his obligation as a ski buddy but not keep proper sight of Mark Kennedy when he fell into the tree well, and for not immediately stopping to help him.
Coe, in his response, said he was not responsible for Kennedy when he fell into the tree well, and that he notified the guides as soon as he realized Kennedy was missing.
The lawsuit could lead to a legal precedent on the entire buddy system, which would impact many walks of life.
“The case raises some very interesting legal issues which don’t often come up in our courts, and that is the duty of care that one individual has to another in this type of recreational setting,” said Robert Kennedy, the lawyer for Heli-Cat Canada, the industry partnership of heli and cat skiing operations. “Not only the heli-skiing and snow-cat skiing industry is watching, but lawyers generally are watching this case to see what the outcome will be because it’s far from clear in the law what the legal duty of care is in this situation.
“I think that is one of the more interesting issues that will be addressed in final argument by both the counsels for the plaintiff and defendant.”
The buddy system plays a key role in the mechanized skiing industry, particularly when tree skiing. Tree well safety is an important focus of safety briefings.
“Guided or unguided, the buddy system is an important part of mountain safety,” said Ian Tomm, the executive director of Heli-Cat Canada. “Even as recreational ski tourers out there, the buddy system is an important part of it. It’s something that’s taught at all levels of avalanche training and backcountry safety is don’t go alone and know where your partners are.”
Personal-injury lawyer weighs in
Greg Rodin, a Calgary-based personal injury lawyer, once represented a claimant in a high-profile sky diving case. He was the lawyer for Gerry Dyck, a professional sky diver, who was struck by a teammate while performing team aerial stunt maneuvers.
Dyck was knocked unconscious by the blow and he was unable to deploy his parachute. He barely survived the crash. Dyck successfully sued his teammate for causing his crash.
Rodin said that in order for Elizabeth Kennedy to be successful in her lawsuit, she would have to prove that Adrian Coe put his own enjoyment above his duty to watch out for her husband, something that would be very difficult to do.
Coe, on the other hand, simply needs to argue that his own well-being was at risk if he didn’t focus on his own skiing.
“If the reason you weren’t seen is because the guy had to re-focus his attention on saving himself, I don’t think you could argue there’s a duty of care,” said Rodin.
When this lawsuit was launched in 2011, Robert Kennedy raised it at the annual general meeting of Heli-Cat Canada that fall. The industry waiver, which had held up in court before, was modified to also protect guests from liability – not just the company and guides.
Kennedy said that because of the amendment that’s already in place, he doesn’t expect to have a long-term impact on the heli-ski industry. Still, it could have an impact on other sports where the buddy system is paramount, like scuba diving.
Rodin thought his sky diving lawsuit would have a lasting impact, but he said in fact there was very little.
“I think there might have been one or two lawsuits after mine that I saw,” he said. “It doesn’t open flood gates.”
Kennedy said the buddy system is a difficult one to enforce and “far from perfect,” noting it’s difficult to keep one’s buddy in sight while tree-skiing.
“Therefore I think it’s quite alarming for the industry generally, and for participants in the sport to think that a day’s outing can result in this type of claim,” he said.
Tree well victim’s family questions system
Tree well deaths happen occasionally in the ski industry, both inbounds and in the backcountry. On Feb. 23, 2011, Revelstoke resident Evan Donald died while heli-skiing with CMH Revelstoke. Donald was an employee of CMH and he was able to go out skiing for the afternoon – a perk of his job.
His death prompted his family to raise questions about the responsibility of the company and the buddy system as a whole.
In a February 2012 interview, Donald’s brother Trevor questioned how strictly the buddy system was enforced.
The coroner’s report into Evan’s death doesn’t speak to the effectiveness of the ski buddy system and it doesn’t mention where his partners were when he fell into the tree well. It classifies his death as accidental and makes no recomendations.
Joy Donald, Evan’s mother, said in an interview last week her son died when his ski buddies failed to stay with him. She filed an access to information request for all the documents associated with the investigation into her son’s death.
According to her account, her son – a snowboarder – was buddied up with two other skiers that afternoon, neither of whom he knew that well.
She claims the guide that day told him to take an alternate route to avoid a small hill because he was on a snowboard. His two ski buddies didn’t go with him, so they didn’t see when he fell into a tree well.
“I know the guide gave him the command to go the other way, and that’s why my son is dead – because nobody followed him,” she said.
Donald did not provide the documents to the Times Review and we were unable to substantiate her claims.
She said the ski buddy system could be improved. “You know your real buddies are going to protect your back, but what about people you don’t know?”