01/28/2014 06:45 EST | Updated 03/30/2014 05:59 EDT

B.C. Heli-Ski Death: 'Ski Buddy' Not Liable, Says Judge

VANCOUVER - A widow who says her late husband's "ski buddy" failed him during a tragic accident in British Columbia five years ago has lost her bid for compensation from a court.

Colorado resident Mark Kennedy fell into a tree well — an area of deep and loose snow around the tree's base — and suffocated Jan. 11, 2009 while skiing on a mountain near Blue River, B.C., about 580 kilometres northeast of Vancouver.

His widow, Elizabeth Ann Kennedy, launched a lawsuit against her husband's ski partner, Adrian Coe of Britain, seeking compensation.

She argued Coe owned her husband a "duty of care," and failed to notify the heli-skiing guides as soon as he knew Kennedy was missing. She claimed that failure meant rescue efforts were delayed.

Kennedy also argued Coe breached an express or implied contract between the two the day of the tragedy.

But B.C. Supreme Court Justice Barbara Fisher disagreed and sided with Coe in a ruling posted online Tuesday.

"I have concluded the action in negligence must be dismissed on the basis that Mr. Coe did not owe a duty of care to Mr. Kennedy, and even if he did, he met the standard of care in the circumstances and was not negligent," she said.

"I have also concluded that the action in contract must also be dismissed on the basis that the plaintiff failed to prove the existence of a contract, or that Mr. Coe breached any terms of a contract."

Fisher said Kennedy voluntarily took part in a high-risk sport with full knowledge of its risks, paid a third party to participate in the excursion and signed a waiver.

The judge said Kennedy participated in a buddy system that was flexable in its application depending on the guides' instructions, terrain and conditions.

She said there was no basis to find Kennedy relied on Coe to do anything more than ski with him through the forest.

In making her ruling, though, Fisher said the Colorado woman faced several hurdles. On the issue of liability, Kennedy's claim that one skier owes a duty of care to another in such circumstances hasn't been recognized in Canada, she said.

Ross Cark, legal counsel for Kennedy, declined to comment on the ruling.

Peter Roberts, legal counsel for Coe, said the ruling is important to the skiing industry.

"It says that participants in their operations, guests, paying guests, don't owe a legally enforceable duty of care between themselves for any misadventure that happens to anyone of them on the hill," he said.

Roberts urged caution, though, because each case is dependent on its facts, and there could be a different scenario in the same context where a duty of care could exist, like rock climbers using a pulley to help a fellow climber.

He said Coe feels badly for Kennedy's loss, but he never felt that he bore responsibility.

"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," said Roberts.

Roberts also said his client purchased a travel insurance policy before the trip, and that policy helped him defend against the court action.

Fisher ordered Kennedy to cover Coe's court costs, although those costs have yet to be determined.

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