Vanderham
News

Whistler Bike Park Prevails in Injury Lawsuit

Words Cam McRae
Date Jun 20, 2017

The facts in this case have never been in dispute; Blake Jamieson was riding in the Whistler Mountain Bike Park on August 28th, 2009 when he crashed. He was riding A-Line and attempting to pre-jump the well-known A-Line rock drop. Unfortunately it seems he clipped his rear wheel and went over the bars. The rock drop has continued to shrink over the years but it was at one point a significant drop. This move is signed and not mandatory. Riders can choose to ride around to the right and avoid it completely. Pre-jumping the drop is an advanced move. Jamieson suffered a spinal cord injury resulting in paralysis from the waist down.

On August 15th, 2011, Jamieson submitted legal action against "Whistler Mountain Resort Limited as the bike park owner and Gravity Logic Inc. as the company that originally designed and created the park." I have not seen the value of damages sought but they were based on "pain and suffering, wage loss, medical expenses, future care, loss of income earning capacity and other damages." He was likely seeking a significant sum.

Yesterday the reporting on other mountain bike sites was based on articles from mainstream publications because the judgment hadn't been released to the public. I opted to see the document for myself before reporting on this matter because it all seemed preposterous. The injured rider had spent time volunteering as a trail builder for the bike park and as a volunteer patroller for three seasons tending to injured riders in exchange for a bike park pass. Before his injury, Jamieson had participated as a ski racer at the provincial and national levels and even spent time heli-skiing so he was familiar with sports involving risk and with signing waivers. But it gets better. By August 2009 Jamieson had completed an English degree and the first two years of a medical degree.

Since his injury Blake Jamieson completed his medical degree and became a radiologist. Despite this education, Dr. Jamieson claimed that he was unaware of the risks associated with riding a mountain bike in the Whistler Mountain Bike Park. He claimed that Whistler's four-page waiver failed to adequately warn him of the dangers. Specifically, "The plaintiff argues the Release is invalid because it fails to alert patrons to a known mechanism of injury (being thrown over the handlebars), a possible injury (spinal cord injury) and the frequency of injuries."

Dr. Jamieson had a unique opportunity to witness and understand the risks of the park when he worked as a volunteer patroller. I have some perspective on this because I worked as a volunteer winter patroller for Blackcomb for three seasons in the late 90s. Dr. Jamieson claimed that working as a patroller, "led me to believe that the risks of serious injury associated with mountain biking in the Park were minimal." 

Obviously, there are differences between winter and summer but it is generally accepted that the rate of injury in the bike park is several orders of magnitude higher per rider visit than even the winter terrain park. Despite this, my time volunteering on the mountain opened my eyes to the number and severity of injuries sustained by skiers and snowboarders and it made me more risk averse. Beyond the incidents I witnessed and tended to myself, the other patrollers always talked about what they had dealt with in the locker room at the end of the day. In my view, the statement below is disingenuous. Working as a patroller made my hyper-aware of the risks on the mountain and this exposure caused me to exaggerate the danger involved. There were times the experience left me positively spooked. To suggest that performing first aid in the bike park would make you downplay risk is as logical as suggesting a cop would underestimate the crime rate. 


time as patroller

Dr. Jamieson's statement regarding his time as a volunteer patroller is highly suspect to me. 

The significance of Dr. Jamieson's contention about his experience as a patroller and what he felt were failings in the wording of the release is that he stated that if he had been aware of the risks he would not ride have ridden his bike in Whistler Bike Park. He did not go on to say he wouldn't drive if he became aware that cars sometimes have collisions but we can assume that is the case. 

Interestingly the plaintiff relied on a statement provided by a rider named Fernando Romero. Mr. Romero suffered a spinal cord injury while riding outside the bike park and he stated that this experience made him more cautious and that he felt many riders are unaware of the risks. The judge found that Mr. Romero's evidence actually helped Whistler's position as shown in the text below. Note that Mr. Romero continued to ride the Whistler Bike Park after his injury. 


Fernando

While this gives riders and bike park operators some cause for optimism the circumstances in this case are unusual. Dr. Jamieson's level of education and his experience as a skier and rider made his contention that he failed to understand the language in the release untenable. His experience as a patroller nullified his ability to suggest that he was unaware of the risks of riding in the park, particularly when evidence was produced that Dr. Jamieson took precautions for spinal injury while treating some riders and on one occasion ruled out spinal injury after examining an injured party. 

While these factors worked against Dr. Jamieson and helped the defendants, it's also heartening that the language of Whistler's waiver stood up to judicial scrutiny. This doesn't mean there couldn't be a circumstance in the future that the release fails to account for but this finding is likely to discourage future legal action, particularly because The Honourable Madam Justice Sharma awarded legal costs to Whistler and Gravity Logic. 

I have generally found it difficult to pass judgment on those who take legal action after being injureds. The pressure to pursue compensation from family members and lawyers must at times be intense and in the U.S. many injured parties have no medical coverage. This could force injured parties to choose between legal action and bankrupting the family and/or to go without necessary treatment. Here in Canada many of the costs associated with an injury such as this would be covered by our (mostly) excellent medical plan. It's also said that treatment of spinal injuries in Vancouver is some of the best in the world because of the number of patients our active population produces. Undoubtedly this injury caused incredible pain and hardship and unanticipated costs, but they failed to disrupt the plaintiff's career path and it seems his earning prospects are significantly better than average at this point. 

In this case, particularly considering Dr. Jamieson is now gainfully employed as a radiologist, it's hard to see how he could in good conscience blame the bike park operators and designers for his injuries. When I read that despite having been a patroller Dr. Jamieson was unaware of the risks of mountain biking, his credibility was seriously eroded in my view. 

It's unlikely that the loss of this suit would have had a dramatic impact on the Whistler Bike Park. It's possible some features would have been dumbed down and the waiver might have grown to 6 pages, but life would have gone on. It could, however, have had a devastating impact on smaller operations if insurance rates had skyrocketed. Places like Coast Gravity Park, Sun Peaks here in B.C. or Highland in New Hampshire could easily have been forced out of business if this judgment had gone the other way.

It's a nice change to see the legal system working as it should and the table tilting toward all of us being responsible for the consequences our actions. 

The Reasons For Judgement document can be found here...

Comments

CoilAir
-3
CoilAir  - June 20, 2017, 4:19 p.m.

This is seemingly the talk of all MTB websites, and an interesting case-study to discuss.

However, absolutely baseless accusations such as: "He did not go on to say he wouldn't drive if he became aware that cars sometimes have collisions but we can assume that is the case" serve no purpose whatsoever, and paint NSMB in a fairly petty light in my opinion.

I think we can all draw fairly similar conclusions on this judgement based purely on the facts without useless assumptions...

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cam@nsmb.com
+1
Cam McRae  - June 25, 2017, 11 p.m.

He literally said that if he had been aware of the risk of going over the bars and a potential spinal cord injury that he wouldn't have ridden in the park. No long time and competent mountain biker is so ridiculously unaware and certainly not one who had worked three seasons as a vollie patroller and had two years of med school under his belt. You are entitled to your opinion but I stick by mine; that this statement is beyond ridiculous. If I'm writing about an issue regarding mountain biking commentary is part of the package and I won't be backing away from that. And it wasn't an accusation at all actually.

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rugbyred
+2
Eric Van Sickle  - June 20, 2017, 6:58 p.m.

Glad to see that justice prevailed in this case. 

I fractured and dislocated my C3 at Whistler snowboarding and not once did I think of suing. This case sounds like someone hoping for some "easy" money. I was fortunate that I didn't suffer any paralysis or long term injury such as the plaintiff, so I won't try to say I know what he has gone through but trying to make money off of an injury that was "his fault" is insane. 

Eric

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JMaxle
+1
JMaxle  - June 20, 2017, 7:14 p.m.

I'm certainly not a contracts law expert but I'm pretty surprised that a lawyer even took this case on in the first place. In Loychuck v Cougar Mountain adventures, (which is cited in the reasons for judgement document), the court ruled that a limitation of liability waiver, signed at a Zipline company (also at Whistler), was a barrier to any future law suits, for those who signed the waivers.

The court ruled this way even though the Zipline company was ~100% at fault for what happened (long story short, they sent two people down the zipline in a rapid succession before the zipline was clear, and the Zipliners crashed into each other). The court ruled there that when one signs a waiver for a "risky sport" they can basically no longer sue. Even if the rider did nothing wrong, and the operator is completely at fault.

Can read it yourself here if you so desire.
https://www.canlii.org/en/bc/bcca/doc/2012/2012bcca122/2012bcca122.html

Reason I'm writing all this, is that the article makes it seem like there was a real risk that Whistler would lose here. After the Loychuck case, I don't think there was ever really a real risk of that. Mind you only courts in B.C. need to follow the Loychuck case, so this little commentary doesn't really apply to courts outside of B.C.

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davetolnai
+3
Dave Tolnai  - June 21, 2017, 9:10 a.m.

I think I took a similar thing away from this.  In my eyes, this is kind of scary.  We all understand the risks we take and it is easy to understand that Whistler wouldn't be liable if we screw up in the normal course of our riding.  But for a waiver to give them immunity even if they are negligent?  That seems crazy to me.

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cam@nsmb.com
0
Cam McRae  - June 25, 2017, 11:06 p.m.

Are you sure you can equate ziplining to mountain biking? It seems to me it's more along the lines of paragliding where a fall can easily result in a fatality. The risk of fatality in mountain biking in comparison is infinitesimal. If negligence wasn't to be even considered then it's likely the trial judge would have commented on that rather than delving into the issues as she did. You may be correct but it seems the language of her judgment would have differed if these cases were analogous.

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andy-eunson
0
Andy Eunson  - June 26, 2017, 12:58 p.m.

The difference between mountain biking and zip lining is that it takes zero skill to zip line. It's like a carnival ride. I don't recall the actual facts of the zip line accident. I understood that the first woman did not get to the end of the zip line for some reason and the next woman was allowed down. Did the first one do something that left her out there? Did the second woman jump the gun? Did one or both of the contribute to the cause of the accident? 

Similarly both activities involve some risks to participants but biking sees the participant with much more control of risk. The participant decides on which trail to take, speed, steering, braking etc. More often than not they bring their own equipment too. To me though the zip line case was somewhat surprising as I think the general public see it as a low risk but high thrill activity. 

I know of two accidents that occurred on Whistler skiing. Same friend. Once he was skiing on a powder day, skied between two runs in a cleared legitimate opening where he struck a terrain park rail that was left in the opening but was covered by new snow. My friend was warned at the last second by the guy skiing in front of him so he got his skis up and hit it with his tails. Still he blew his achilles and something else. Whistler settled with him.  Second incident was on Symphony chair. We pulled down the safety bar and one side let go and hit him on the head. Dented helmet and blood from his mouth. No lasting injury and Whistler bought him a helmet. Those types of ski area negligence are not what waivers are intended for.

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JMaxle
0
JMaxle  - July 2, 2017, 3:56 p.m.

I agree the sports should be treated differently since they are different sports with different risks (with only one requiring rider skill) but if you read the Loyachuck judgement (paragraph 32-39), you see that waivers being a complete bar to further action principle has been used for a lot of sports that are closer in nature to mountain biking (skiing and rafting for ex).

As it stands waivers bar nearly any recovery when doing a risky activity. Even when the operator is being spectacularly negligent, as was the case with the zipline operation, where the rider was sent down on a guides instructions.

I realize that most people might think that it should be illegal for waivers to go this far, and perhaps it should be, but as it stands right now, it's not, and Whistler certainly won't be getting you to sign any waivers to make it easier to sue them any time soon.

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El_Sketchio
0
William Gaffney  - June 22, 2017, 4:02 a.m.

I feel sorry for him but Risk is Risk, known or unknown that is life. Are you going to sue your Parents because you have a severe illness from Genes?

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cxfahrer
0
cxfahrer  - June 22, 2017, 11:33 p.m.

There are so many bikeparks (at least here in Germany /Austria) that I would want to sue Just because they have so many bad and dangerous features built, or have Just zero maintenance.
I would not want all responsibilty being taken away from the park owner by signing a waver.

I remember there was a court in Austria that had to judge a similar claim by someone who participated in a skiing event and got hurt badly - kind of a blind race enduro-style. There was a sharp left turn behind a small bump that the guy jumped and so missed the turn and went down the gorge. There were signs warning, but the judgement was that this was not sufficient, as at racing speed no one would expect a sharp left turn behind such a bump...the race promoter lost.

Reply

Bikemej
+1
Jennie Elliott  - June 25, 2017, 11:59 a.m.

As a Whistler resident since 2001 and based on my personal experience with this same bike park - I can tell u that his lawsuit was baseless.  It's clear to anyone with any common sense that a rider can get seriously hurt while riding in this park.  All summer I see riders with various injuries, some less serious than others, coming from the bike park, to be treated at our local medical center.  More than one rider has broken his back or has had to be transported by helicopter or ambulance to a larger hospital in Vancouver for a serious injury.  Not only did he sign the wavier but their are signs all over the park saying "use at your own risk" etc.. He was also a 2nd yr medical student and was on the first aid patrol - he personally attended to people with spinal and head injuries.  If anything this background made him more aware of the risks then the average rider.  

I feel bad for the guy but he knew the risks.  We all do these sports because they are exciting and we love them but their are risks involved.  I'm sorry he got hurt.  It's unfair.  This is a person who is angry about being paralyzed (who wouldn't be?) but that doesn't mean that the bike park is to blame.  It sounds like he could use a therapist to help him come to terms with the accident.  His life is changed forever but many disabled people lead very productive lives.  I wish him the best.

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