What Will be the Significance of Going ‘Out of Bounds’
July 14, 2011
Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management
During the winter season of 2009, there were a number of avalanche tragedies in Western Canada. Most, if not all, of them could have been avoided with the use of common sense and in some cases, proper preparation. However, one tragedy garnered more publicity due to the sequence of events surrounding the incident. A Quebec couple skied under the tape at Kicking Horse Resort, and skied out of bounds. They became lost and were not found until 9 days later and sadly, the wife had died largely due to hypothermia. What happened between the time they skied under the tape and when they were found is now being investigated and will be seen through a microscope as a result of the lawsuit that was filed by the survivor shortly thereafter.
Apparently, after the couple descended the slope they were near the Columbia River, and quickly realized that they were lost. They attempted to follow the river but chose the wrong way which took them farther from help rather than closer. At one point, they marked out “SOS” in the snow which was seen by back country skiers on the second day and reported to the local Search and Rescue Group. This group, like other search and rescue groups is made up of volunteers, and though highly trained, they cannot simply go out and search and rescue without authority from police and the Provincial Emergency Programme. The resort was contacted but there was nothing to indicate that anyone was missing. There is a dispute as to who was to call the RCMP, the person reporting the SOS sighting or the search and rescue group, but the RCMP was not contacted. As a result, no search and rescue was conducted.
Several days later, the same backcountry guide saw another SOS, reported it but again – nothing followed. It was not until the ninth day, when a helicopter flying low saw an SOS and a person waving, that the rescue was conducted.
The commencement of the lawsuit by the survivor almost resulted in the local search and rescue organization disbanding because of the liability implications, and may yet have a negative effect on the ability of such organizations to operate in the future. So much went wrong that it would have been a farce but for the tragic consequences.
What went wrong?
- The skiers went into clearly marked ‘out of bounds’.
- The skiers told no one of their plan for the day, and they were not expected back at the hotel that night.
- The skiers had no survival gear — no matches, water and only two granola bars, and it might be safe to assume that they did not have a map.
- After two days, an SOS in the snow was spotted by backcountry skiers, but no one was in sight or sound of the SOS.
- Someone, and it is not clear who should have, did not contact the RCMP.
- The resort was checked but there were no reports of missing people.
- A second SOS was seen after 6 days, reported directly to the RCMP — who in turn contacted the search and rescue. They told the RCMP of the earlier report and nothing further was done about the second SOS.
- The wife died on the 7th day and the husband stayed with her body hoping for rescue.
- The weather had been excellent resulting in helicopters flying at higher altitudes, and therefore making it more difficult for them to see people or SOS signals.
- On the 9th day, the weather became cloudy resulting in the helicopters flying lower and hence able to spot both and SOS and the husband.
More evidence may be revealed about the actions of various parties but this list highlights the decisions made and consequences which followed. Some serious issues will arise if some blame is attached to the parties involved in the search and rescue response, and there could be devastating consequences. Lawsuits are not concerned with the future, only with analyzing the past. Insurers may become reluctant about taking on the search and rescue risk, and these organizations really cannot operate without insurance.
There are always lessons that can be learned from any situation which can assist in avoiding future incidents. For those involved in life in the backcountry, a better system of tracking an SOS may be needed. If resources are spent following up on an SOS, perhaps it should be accepted that the person who made the SOS will be responsible for the costs involved in the search. Perhaps there needs to more education to skiers and backcountry users regarding the risks of certain actions and perhaps there is already education that is simply being ignored. The ski resort liability waiver will be analyzed again. Regardless, there needs to be an assessment done of the situation pointing out the problems and seeking solutions to avoid a future replay.
This kind of case is a field day for ‘armchair quarterbacks’ (or ‘armchair judges’) who will spend much time focusing blame on each and all of the players in the incident. They have the luxury of hindsight, and will not be able to appreciate being in the moment. But ultimately, this case should starkly set out the responsibility of the individual for his or her own safety, and the responsibility of the community to provide assistance. It all began with the decision to go out of bounds — now it is a question of what boundaries exist for responsibility.
Post Script: Despite the publicity from the situation at Kicking Horse last winter, three incidents have occurred at the ski resort, Revelstoke in January 2010. In each incident, skiers went out of bounds and putt themselves in serious danger, with the third ending in tragedy. In the first incident, two skiers skied out of bounds and were lost, spending two nights in the cold before being rescued. A few days later, a skier just barely missed going over a 30 metre cliff, and was rescued. The latest incident, January 29, resulted in three men going over a 100 metre cliff, with only one surviving the plunge. In each situation, search and rescue teams were dispatched under difficult circumstances. A local RCMP officer stated: “It’s frustrating in the fact that people obviously don’t understand what is outside this area. They’re not heeding the information coming from the resort. It’s out of bounds for obvious reasons.”