This Assignment requires critical analysis skills to resolving torts and other legal issues given in the case study.
Assignment 2 Scenario Dora is an avid skier who recently took her dream vacation to a resort in the Canadian Rockies to ski. Each day that Dora went skiing, she bought a lift ticket that allowed her access to the lifts that took her to the top of the mountain. The ticket contained a waiver of liability on the back of it, but she did not read it. On her second day of skiing, Dora decided to try the hardest ski run on the mountain. Halfway down the run Dora hit a patch of ice, which made her lose control, and she hit a tree at full speed. Dora suffered a severe head injury and a broken leg, and she was transported off the mountain by emergency services. In the ensuing month, her leg healed well. However, unfortunately this was the third head injury that Dora had suffered in recent years, and she was not able to continue working in her job because of continuous headaches and cognitive problems. Using your knowledge of torts and contracts, advise Dora as to her legal options. Be careful to identify any claims that she may bring against the ski resort and any defences that the resort may have to her claims. Spot the Issue Assignments A spot the issues question presents you with a brief scenario and asks you to identify any legal issues as well as provide your opinion on how the legal issue may be resolved. Use the IRAC formula to work through the scenario. This question format will also be on the mid-term and final exam. The IRAC Formula The method you will use to answer spot the issue(s) questions in this course is the IRAC formula. The IRAC formula presents a structured way for you to organize your thinking and your answer. The formula contains the following steps: Set out your assignments under the following headings: Facts Bullet points are all we are looking for here. Do not include any conclusions in your facts. This section simply requires you to pick out the main facts from the question and re-state them. Issues With respect to issues, I recommend that you frame these as questions. For example if the assignment was a case about a potential breach of fiduciary duty (I'm not saying any of the assignments are, this is just an example to illustrate) you would say something like: 1. Did the defendant owe the plaintiff a fiduciary duty? a. Was the defendant uniquely vulnerable to the plaintiff's unilateral exercise of discretion? 2. Did the defendant breach his/her fiduciary duty? a. Did the defendant exercise his/her discretion in such a way as to cause loss to the plaintiff? 3. What remedy, if any, is the plaintiff entitled to? a. Is the plaintiff entitled to an injunction? b. Is the plaintiff entitled to damages? i. If "yes", how are the damages calculated? Then repeat each one of these questions, and answer each one, in the analysis section. Rule For the rule section - you should not write full sentences, and you should not explain or apply the rule here. Write this section out in bullet points, or a numbered list - not full sentences. Start with the broadest legal rule that applies (1) and then narrow down to all the subrules that apply (a, b, c) to that broad rule (1) that you will have to consider. Repeat for additional legal rules, if necessary. Here's the kicker: if you don't identify all the right issues or the right rules, you cannot possibly get full marks on the analysis section. Analysis In this section you should use headings that match your numbered issues. Apply the rules you have identified in the rules section (don't bring up new ones here!) to the relevant facts stated in your facts section to answer the questions you have set out as issues in your issues section. This section requires full sentences and should form the majority of your assignment. This is where you explain how the rule (or law) works in this particular situation. Conclusion Write a brief recap that summarizes your answers in the analysis section. Don't raise or answer new issues here! This section should also be written in full sentences. The IRAC formula is used in the grading rubric for all of the “spot the issue(s)” assignments. Instructions 1. Read the attached scenario carefully. 2. Use your knowledge of torts and contracts to advise Dora as to her legal options. Be careful to identify any claims that she may bring against the ski resort and any defences that the resort may have to her claims. 3. Your answer should be approximately 1500 words in length. Use 12-point Times New Roman font. 4. Make sure you thoroughly address all of the steps in the IRAC formula providing complete explanations for each issue. Writing Guidelines Use legal referencing when citing any material from the course readings (this includes both paraphrasing and direct quotes). Use the following online guides to format your citations to the McGill Guide: The Canadian Guide to Uniform Legal Citation style: · University of Toronto (Bora Laskin Law Library) https://library.law.utoronto.ca/legal-citation · · Queen’s University https://guides.library.queensu.ca/legalcitation-mcgill-9th Thompson Rivers University Terrance P Power BLAW 2911_SW4 - Commercial Law (Winter 2019) Jessica Giancola T00654438 Assignment 2: Torts 05-FEB-2020 Facts: Dora took her dream vacation to a resort in the Canadian Rockies to ski. Each day that Dora went skiing, she bought a lift ticket that allowed her access to the lifts that took her to the top of the mountain. The ticket contains a waiver of liability on the back of it, but she did not read it. On the second day of skiing, Dora decided to try the hardest ski run on the mountain. Halfway down the run Dora hit a patch of ice, which made her loose control, and she hit a tree at full speed. Dora suffered a severe head injury and a broken leg, and she was transported off the mountain by emergency services. Her leg healed well. This was the third head injury that Dora has suffered in recent years. She was not able to continue working her job because of continuous headaches and cognitive problems. Issues: Is the defendant the, Ski Resort, liable to Dora on the basis of negligence? Is The Thin Skull Rule applicable here? Rule: Negligence Occupiers Liability Act, RSBC 1996, C 337, S 3(1)(2)(3): Occupiers’ Duty of Care Thin Skull Rule Voluntary Assumption Risk Analysis: [1] Under the elements of negligence, as stated in Dorothy DuPlessis, Shannon O’Byrne, Philip King, Lorrie Adams, Steven Enman, Canadian Business and The Law, 6th ed., Loose Leaf Edition: ISBN-13: 978-0-17-679441-5, ISBN-10: 0-17-679441-7, (Nelson Education, 2017), at p 245, Does the defendant owe the plaintiff a duty of care? Did the defendant breach the standard of care? Did the defendants careless act (or omission) cause the plaintiff’s injury? Was the injury suffered by the plaintiff too remote? Dora must first prove that the ski resort owed her a duty of care, in that the ski hill should have been well groomed as to avoid the possibility of skiers slipping on ice patches. Was the possibility of running into an ice patch on the ski slope an unforeseeable circumstance? I think not. Due to the nature of the activity, the weather, and the traffic on the slope, it is likely that ice growth could occur at some location on the ski slopes. [2] Dora could argue that the terms and conditions that were printed on the back of her pass should have been expressly presented to her, rather than assuming she would read them on her own. This way she could have made a better informed decision before attempting a more difficult slope, considering her knowledge of prior injury. [3] The Thin Skull Rule, as stated in Dorothy DuPlessis, Shannon O’Byrne, Philip King, Lorrie Adams, Steven Enman, Canadian Business and The Law, 6th ed., Loose Leaf Edition: ISBN-13: 978-0-17-679441-5, ISBN-10: 0-17-679441-7, (Nelson Education, 2017), at p 250: The Principle that a defendant is liable for the full extent of a plaintiffs injury even where a prior vulnerability make the harm more serious that it otherwise might be. Dora can argue that the ski resort is financially responsible for the entirety of her loss, due to the ski injury, regardless of her physical vulnerability prior to the accident. However, this can only be applied if Dora can prove her position that the ski resort is liable for her loss. Defence: [1] The plaintiff chose to engage in an inherently risky activity despite the knowledge of past injuries. Voluntarily risking her physical well being by participating in the ski activity. Law Reform Commission of British Columbia 1994, Report on recreational Injuries: Liability and waivers in commercial Leisure Activities, LRC140SM.W51, http://www.bcli.org/sites/default/files/LRC140-Recreational_Injuries.pdf : 1. (a) Persons who enter premises to participate in a sport or other recreational activity should be statutorily deemed to have willingly accepted the inherent risks associated with that sport or activity for the purpose of section 3(3) of the Occupiers Liability Act. (b) “Inherent risk” in paragraph (a) should be given the following definition: “inherent risk” means the possibility of physical injury to a participant or spectator, incidental to and inseparable from a recreational activity, that cannot be eliminated by the exercise of reasonable care without fundamentally changing the nature of the recreational activity. (Comment: Section 3(3) of the Occupiers Liability Act provides that an occupier owes no duty of care to persons in respects of risks that they "willingly accept" as their own, other than a very minimal obligation of not causing deliberate harm or acting with reckless disregard for their safety. Recommendation 1 would confirm that the Occupiers Liability Act does not impose liability for injuries that occur due to the inherent risk of a sport. Deliberate harm or recklessness is not considered inherent risk.) Canada West Ski Area Association (CWSAA), “Alpine Responsibility Code”, online “< https://cwsaa.org/policy/alpine-responsibility-code/="">.": Always stay in control. You must be able to stop, or avoid other people or objects. People ahead of you have the right-of-way. It is your responsibility to avoid them. Do not stop where you obstruct a trail, or are not visible from above. Before starting downhill or merging onto a trail, look uphill and yield to others. If you are involved in or witness a collision/accident you must remain at the scene and identify yourself to the Ski Patrol. Always use proper devices to help prevent runaway equipment. Observe and obey all posted signs and warnings. Keep off closed trails and obey area closures. You must not use lifts or terrain if your ability is impaired through the use of alcohol or drugs. You must have sufficient physical dexterity, ability, and knowledge to safely