Mr Malayko decided to spend the day skiing at Snowy Valley Ski Hills. In order to access the ski lifts, he purchased a lift ticket that he affixed to the outside of his coat. However, before he could enjoy his day on the slopes, Malayko was injured by a ski lift. While standing in position waiting for the next lift, he was struck on the knee from behind by a handle which, instead of hanging straight down from the lift was improperly protruding in a horizontal position. He suffered a serious ligament tear and brought an action against Snowy Valley alleging that it was negligent in its maintenance, operation, and supervision of the lift. On the front of Malayko's lift pass is printed: PLEASE READ THE EXCLUSION OF LIABILITY AND ASSUMPTION OF RISK NOTICE ON THE BACK. On the back of the ticket is printed: NOTICE TO ALL USERS OF THESE FACILITIES: EXCLUSION OF LIABILITYASSUMPTION OF RISK. THESE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTSPLEASE READ CAREFULLY! As a condition of the use of the ski area facilities, the Ticket Holder assumes all risk of personal injury from any cause whatsoever including but not limited to the risks, dangers, and hazards of skiing; the use of ski lifts; and negligence. The Ticket Holder agrees that the ski area operator shall not be liable for any such personal injury, death or property loss and releases the ski area operator and waives all claims with respect thereto. Snowy Valley had also posted brightly coloured signs containing these terms in the lift ticket purchase area and in various other locations throughout the ski area. In addition, an Alpine Responsibility Code was also posted throughout the area, including the ticket purchase area. One of its provisions said, "You must have sufficient dexterity, ability, and knowledge to safely load, ride, and unload lifts." Malayko claims that this limitation of liability clause does not form part of his contract with Snowy Valley because he had no knowledge of it.

Questions for Discussion

. Do you think Snowy Valley took reasonable steps to bring the limitation of liability to Malayko's attention? What more could Snowy Valley have done?

2. How does the fact that Malayko's injury was caused by a mechanical fault in the ski lift rather than the "use of the ski lift" (which is the language used in the limitation of liability clause) affect the scope of the limitation? If you ran Snowy Valley, what would you change about the clause, if anything?