On February 14, Rocky Resorts Inc. held a special hillside party which featured snowboard and inner-tube races "under the lights" commencing at 11:00 p.m. Participants were required to purchase a ticket for $50.00 which included tickets for 3 alcoholic drinks and 1 food item. The races were to be timed races with participants departing every 30 seconds. The resort, as in the past, featured prizes for the race winners.

Tickets sold stated on the reverse side:

"Participants take full responsibility for their actions and agree that Rocky Resorts Inc. shall not be responsible for any injury or harm caused or sustained during the event."

Each participant was required to sign the ticket as a condition of participating.

Two events occurred which have given rise to legal action.

The first action involved Erica. Erica had never snowboarded before, but had gone to Rocky Resorts with her University roommates. At their urging, Erica agreed to participate in the snowboarding races. Erica had one drink with her meal and nervously boarded the ski lift. Her friends had already gone out for some practice runs and she was to meet them at the top of the hill. At the hilltop there were a number of people, however, she did not see her friends. She decided that she would practice prior to the race. She started down a gentle slope marked with a number of signs with black diamonds. Suddenly, the hill dropped off sharply and she found that she was speeding down the hill out of control. In front of her, in the middle of the hill was a clump of trees with the path diverging to either side. Erica was unable to turn the snowboard and collided with the trees. As a result of the collision she sustained a broken jaw, broken leg and broken arm. Evidence presented at trial suggested that despite the collision, an ordinary person would have sustained only bruising. However, Erica had a serious pre-existing bone condition (of which she was unaware) which had resulted in the multiple fractures. As a result of the injuries sustained, Erica was in extreme pain for 3 months as she underwent 6 operations. She was unable to complete her University year and, more importantly, lost several modelling contracts which would have paid her $50,000.00. As well, the modelling agency indicated that as a result of the disfiguring of her jaw, it was unlikely that she would have any future in modelling.

Erica has commenced an action against Rocky Resorts Inc. for damages in the amount of $1,000,000.00. She alleges that no one explained to her that the black diamond course was the most difficult; there were no markings to indicate where she should be, and that no instruction on the use of the snowboard was provided.

Required: Examine the issues which will be raised at trial and the likely outcome of the litigation. Be certain to refer to and explain the application of the legal principles and elements of a tort action as part of your answer.

Question 2

The second action against Rocky Resorts Inc. was commenced by Patrick. Patrick and his friends consumed several drinks which they had brought themselves. The drinks had been bought by Patrick's older brother Andrew since Patrick was only 16. Patrick and his friends also picked up and consumed other unattended drinks at the event. To avoid paying Patrick and his friends had entered the resort through a back field.

The organizers were surprised by the large number of contestants for the inner-tube races. They decided to change the format of the races from timed races to a head to head competition with 4 inner-tubes to be launched at the same time.

Patrick was stumbling at the top of the hill and was quite loud and boisterous. The race organizer initially told him that he could not participate in the race. However, Patrick insisted that he was fine and told the attendant that he was aware that he was proceeding at his own risk. The attendant again refused to allow him to participate and asked Patrick to leave.

However, when the attendant's back was turned, Patrick entered the line of contestants.

At the race commencement, Patrick steered his inner-tube into that of the competitor next to him, as had several competitors in prior races. As a result of the collision, both participants were ejected from their inner-tubes and rolled down the hill. Patrick sustained a broken nose and lacerations to his face as a result of the inner-tube rolling over the top of him.

Then, when he could not get his bearings and was slow in attempting to get up he was hit by the next group of racers coming down the hill.

When Rocky Resorts' medical staff examined Patrick they bandaged his nose and face and did no other examination. Patrick woke up the next night in excruciating pain. At the hospital x-rays revealed that his leg was broken in two places. Because the break had not been immediately diagnosed, the doctors had to "re-break" the leg and Patrick's recovery period was extended by one month. Patrick was also diagnosed with post concussion syndrome as a result of his head injury and was confined to a darkened room for the next 2 weeks.

Patrick commenced an action against Rocky Resorts Inc. and his brother for $500,000.00 as a result of the injuries sustained. Both Rocky Resorts Inc. and Andrew claim that they owe no obligation to Patrick and are not responsible for his injuries.

Required: Explain, with particular reference to each of the elements of a tort action, the issues which will be raised by the parties, the applicable principles and the likely result of the litigation.