‘Ski buddy’ off the hook in lawsuit over death in B.C. heli-skiing accident

In a decision with potential implications for anyone involved in back-country skiing or other risky sport, a B.C. Supreme Court judge has tossed out a lawsuit against a British ski tourist by the widow of an American killed in a heli-skiing accident.

Elisabeth Kennedy sued Adrian Coe in the 2009 death of her husband, Colorado lawyer Mark Kennedy, for loss of his future earnings.

She claimed Coe didn't fulfil his duties as Kennedy's designated "ski buddy" as they skied down a mountain near Revelstoke, B.C. Kennedy fell backwards into a tree well – a deep hole in the snow surrounding a tree trunk – and suffocated when his head became buried in the loose snow.

The men were among a group of skiers guided by Wiegele Helicopter Skiing, which paired up skiers to act as each others' ski buddies as they come down the mountain.

Elisabeth Kennedy claimed that the practice amounted to a contractual obligation for Coe to stay close to her husband, keep him in sight and help or summon aid if he got into trouble, CBC News reported.

[ Related: 'Ski buddy' sued in heli-ski death ]

Coe owed "a duty of care" to Kennedy to immediately alert guides as soon as he knew Kennedy had disappeared, she argued. Coe alerted other skiers and a guide when he arrived at the bottom of his run and noticed Kennedy was not behind him. Kennedy's wife said the delay in launching a search resulted in the skier's death.

"This is a novel claim," Justice Barbara Fisher said in her decision.

"The plaintiff faces many hurdles in this action. On liability alone, her claim that one skier owes a duty of care to another in these circumstances is not one that has been recognized in Canada, and the evidence as to timing and causation is not clear."

Fisher rejected the claim, saying Coe did not owe a duty of care in law and even if he did, he met the standard of care required under the circumstances.

Evidence at the trial showed a little over two minutes passed from the time Coe last saw Kennedy at the top of a section of their run and when he alerted the guide. It took roughly four more minutes for searchers to locate Kennedy between one-third and half-way down the run.

A pathologist testified Kennedy would have lost consciousness within seconds of falling into the tree well. His chances of survival diminished quickly after four minutes of unconsciousness due to oxygen deprivation causing brain damage.

Fisher noted Coe and Kennedy did not know each other and never spoke to each other, even after they were assigned to be ski buddies. They skied together on the first part of the run through a forest but were not instructed to do so through the log-cut area where Kennedy disappeared.

Wiegele, a pioneer in B.C. heli-skiing, testified the buddy system functioned as a "gentleman's agreement," in which buddies would "support and look out for each other," the National Post noted.

Guests are not professional back-country skiers, Wiegele pointed out.

"We try to educate them but can't make them experts," he said, adding that several skiers had fallen into tree wells in the past but only one had died before this incident.

Skiers also signed a liability waiver and acknowledgement of the risks associated with heli-skiing, where avalanches have claimed numerous lives over the years. Guests also watched a video outlining the potential dangers and warning them the company could not guarantee their complete safety.

[ Related: Skier, 45, killed in 2nd B.C. avalanche ]

"It is my view that the nature of any obligations assumed by Mr. Coe and Mr. Kennedy was not contractual," Fisher concluded.

"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."

One of Coe's lawyers, Jessica Foreman, hailed the decision as a victory for Canada's extreme-sports industry, the Post said.

“We as individuals have to acknowledge when we undertake these risky activities that we’re ultimately responsible for those decisions,” said Foreman.

To do otherwise, she said, “could deter people from agreeing to be ski buddies for fear that they might ultimately end up being liable.”

Peter Roberts, who also acted Coe, said his client feels badly about Kennedy's death but never felt he bore any responsibility for it.

“He’s lived with it, as a cloud over his life, for the last three years, but now he’s been exonerated and I think feels a great sense of relief,” Roberts told The Canadian Press.

Fisher ordered Elisabeth Kennedy to pay Coe's court costs. Her lawyer declined comment on the ruling, CP said.