In March 1980, a tube race took place at the Sundance Resort near Thunder Bay, Ontario, during its Spring Carnival, held to promote the resort. The prize money offered was $200. The race consisted of two-person teams racing down a heavily mogulled hill (a hill covered with mounds of snow) on oversized tire tubes. Videotapes made of earlier races showed contestants being tossed about like rag dolls. Little or no skill was involved, and the contest was mainly for the entertainment of participants and spectators.

William Crocker, 29 years old, and his partner, Rick Evoy, signed up for the race and paid a $15 registration fee. Although they did not read the application, nor have their attention drawn to it, the form contained a clearly marked exemption clause releasing the resort from responsibility for "... all damage sustained ... and from any or all actions, causes of action, claims, and demands of any nature."

When the race began, Crocker and Evoy were intoxicated because they had been consuming their own alcoholic beverages as well as drinks bought at the bar. The resort's manager was supervising the race and was aware of the plaintiff's intoxication when he saw Crocker stumble and fall before the race. He suggested to Crocker that he not race, but he did not attempt to actually prevent Crocker from doing so. Crocker and Evoy won the first heat.

Between races, both the resort owner and the manager suggested to Crocker that he should not race again because of his condition. Nonetheless, Crocker stated in no uncertain terms that he intended to race. In the second heat, the plaintiff was thrown from the tube when the tire hit a mogul. Crocker broke his neck, rendering him a quadriplegic. Although he had some very limited use of his arms, Crocker became entirely unable to care for himself and would likely require hospitalization or permanent care for the rest of his life.

Crocker brought an action against the resort for negligence causing personal injuries. At trial in 1983, he was awarded damages of $405 275, even though he was found to be 25 percent at fault for his own injuries. Crocker appealed this decision in 1985 to the Ontario Court of Appeal, where the award was overturned and the resort was held not liable at all in a 2 to 1 decision. Crocker was granted leave to appeal to the Supreme Court of Canada, and in June 1988 the Court restored the trial judgment in a 6 to 0 decision.

In Class Group Activity

Break into groups and read the Crocker and Sundance Case and present the answers to the following questions to the class.

1. What standard of care did Sundance owe Crocker and other participants? Was that standard met?

2. Why did the trial court and the Supreme Court not accept Sundance's defence that Crocker's signing of the waiver exempted it from liability? Do you agree? Explain.

3. What steps could Sundance have taken to prevent this accident?

4. Why was Crocker found 25 percent at fault for his own injuries? Do you agree? Explain.

5. With which court decision do you agree, and why?