Assigning Blame

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Will a case presently before the B.C. Supreme Court impact the relationship between you and your ski buddies? *

by Ron Betts from the Winter 2014 issue

How many skiers have found themselves in this situation? A ski instructor with a group of young, giggling kids, all hopped up on hot chocolate and adrenaline, asks you to ride the chair with one of his students. Most skiers or snowboarders wouldn’t think twice about sharing a chairlift ride with a happy grommet. Now imagine being sued for multi-millions and having to vigorously defend yourself in the event something tragic were to happen on that chairlift ride.

Seem far-fetched? It’s not; in fact, a case sits before the Supreme Court of British Columbia right now that will set a precedent on the subject. Needless to say, if the judge rules for the plaintiff, it will change the way backcountry operators and ski areas conduct business from now on—and make you think twice about offering a hand to a tyke in the lift line.

The plaintiff in the heli-ski buddy case, American Elizabeth Kennedy, claims that the 2009 death of her husband, Mark Kennedy, was the responsibility of Briton Adrian Coe, a skier in the group who had been asked to “buddy up” with Mark in the trees, a practice common to many heli, cat and ski-touring operations. Buddy skiing is a guiding procedure that pairs skiers up so they can look out for one another. Guides do this in terrain that doesn’t allow clear sightlines at all times, mostly forested areas. In this case the group had exited the trees and met up approximately 200 metres above the helicopter landing area, where they planned to stop for lunch. The final few turns to the machine were in a previously logged cut block. The ground cover consisted of some small re-growth and alder, the terrain gentle and rolling; the helicopter was clearly visible below.

Unfortunately, Mark Kennedy didn’t make it to the lunch spot. Somewhere along the way he fell into a tree well—the space at the bottom of a tree where snow doesn’t accumulate—and died. Tragic? Definitely. Avoidable? Possibly. But should the fault in this accident lie with someone who had only met Kennedy the day prior, and who claims his responsibility as a tree skiing “buddy” ended when the group entered a non-forested cut block?

Well, this is now up to the court to decide and every ski area operator, insurance provider and professional guide in the country will be watching the outcome closely. It will affect decision-making and policy hereafter.

When Coe travelled to Canada to go heli-skiing, I’m sure the last place he thought he’d find himself was before the Supreme Court of B.C., accused of failing to prevent a death. So just how did he end up there? The simple answer is that Coe’s name is not on the liability waiver. Kennedy’s widow, who has filed this case, was presumably instructed about the difficulty of going after the heli-ski company. After all, they have an ironclad form that each guest signs that releases the company, its employees and Her Majesty in right of Canada.

Mark Kennedy would have known all this, considering this was his fifth trip with the same company—and his occupation was the law. Similarly, his wife would have a hard time proving any fault with the guides—or the manner in which the rescue was conducted. The alarm of a missing skier was raised almost immediately when the group realized Kennedy hadn’t shown up at the meeting spot. Other helicopters and guides were on scene in less than 10 minutes, and Kennedy was located and extracted in less than 15. Apart from the tragic outcome, it was a textbook rescue. So that leaves Coe, who, according to the statement of fact in the civil claim, failed to perform his duties as a buddy and was therefore responsible for Kennedy’s death. Waivers do not protect other skiers in the group from culpability.

So what motivation is there for making Coe, as well as the guides and rescuers, relive this fateful day? Only Elizabeth Kennedy can answer that. Presumably her motivation isn’t financial. Mark Kennedy’s estate was valued at US$18 million, of which Ms. Kennedy received half. Her suit against Coe is asking for $6 million, covering Kennedy’s future earnings. Her own testimony might shed some light on her reasoning: she claimed on the witness stand that she was upset she hadn’t received any form of apology from Coe. Would an apology have prevented this lawsuit? Who knows?

What I do know is this: the run where Mark Kennedy skied his last turns offers 360-degree views of three mountain ranges, including a stunning view of Mt. Robson to the north. It’s a peaceful and beautiful place. Mark Kennedy didn’t want it to be his last run, the guides didn’t want to perform an unsuccessful rescue and Adrian Coe didn’t want to return to B.C. accused of causing someone’s death. There are lessons to be learned here for everyone involved. Mark Kennedy paid with his life, the guides are paying with a painful memory nobody would ever want and Adrian Coe is paying with a burden he’ll most likely bear forever. And if Elizabeth Kennedy receives the verdict she wants, an insurance company, and ultimately the ski industry, will be paying as well.

Ron Betts has worked as a lead guide in the helicopter-skiing industry for more than 10 years and is Ski Canada’s Technical Editor.

* On January 28, 2014 the BC Supreme Court ruled that Adrian Coe was not contractually responsible for the safety of Mr. Kennedy.

Justice Fisher wrote: “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,” wrote Fisher.

“It is my view that the nature of any obligations assumed by Mr. Coe and Mr. Kennedy was not contractual. There is no basis on which to find the existence of a contract or any contractual intention.”

Ron Betts
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