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‘Ski buddy’ not responsible in back-country death, B.C. judge rules

Skiers enjoy early season skiing on Cypress Mountain in North Vancouver, B.C., November 28, 2013. A B.C. court has ruled that the widow of a back-country skier who died in an accident in 2009 cannot recover compensation from his ski buddy.

Ben Nelms/The Globe and Mail

A "ski buddy" was not responsible for the death of a back-country skier on the slopes near Revelstoke, B.C., five years ago, a B.C. Supreme Court judge has ruled.

The case, believed to be the first in Canada to test the legal liability of a "ski buddy" assigned to watch over a fellow skier, comes as the risky sport of back-country skiing becomes increasingly popular.

In a decision dated Monday, Justice Barbara Fisher ruled that Elizabeth Kennedy, the widow of Colorado lawyer Mark Kennedy, was not entitled to compensation after his 2009 death on a B.C. mountain, where he fell into a "tree-well," the depression in the snow created by a tree, and suffocated.

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At the trial, heard in December in Vancouver, lawyers for Ms. Kennedy had argued that a British skier in Mr. Kennedy's group, Adrian Coe, did not keep Mr. Kennedy in his sight, and did not immediately alert the group's guides that the 56-year-old Mr. Kennedy was missing, delaying his rescue.

But Justice Fisher dismissed what she calls the plaintiff's "novel" arguments, saying that Mr. Coe did not owe a legal "duty of care" to Mr. Kennedy, and that even if he did, he was not negligent and alerted guides within minutes after Mr. Kennedy failed to reach a meeting point at the bottom of a run, allowing them to start a search.

"It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so after a terrible accident while participating in a high-risk sport and responsibility for his death cannot be placed on Mr. Coe," the ruling reads.

A lawyer for Ms. Kennedy had no comment. Peter Roberts, lawyer with Lawson Lundell LLP acting for Mr. Coe, said his client, who was insured, was relieved by the ruling.

According to the decision, guides had paired up skiers and asked them to watch their partner in forested parts of the run. But the accident that killed Mr. Kennedy, who had signed a standard waiver absolving the heli-skiing company and its guides of liability, happened in an area of the slope with fewer trees and of "intermediate" difficulty, which skiers finished on their own just before lunch.

Ms. Kennedy was suing for $6-million to $8-million of her husband's future earnings under B.C.'s Family Compensation Act, Mr. Roberts said.

The case raised questions about the duties of ski buddies among back-country skiers. But Mr. Roberts said that since the case was launched, the heli-skiing industry has started including guests, as well as staff, in its standard waiver and release forms.

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About the Author
Toronto City Hall Reporter

Jeff Gray is The Globe and Mail’s Toronto City Hall reporter. He has worked at The Globe since 1998. From 2010 to 2016, he was the law reporter in Report on Business, covering Bay Street law firms and white-collar crime. He won an honourable mention at the National Magazine Awards for investigative journalism in 2010. More

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