This is really the crux of the liability issue. The issue is that the kid who crashed was not being properly supervised. Most likely this was a violation of the ski school's lesson handling policy as well.
The judgement was outlined more fully in the linked article:
The Court based itself, among other elements, on the following:
- The trail chosen, although ideal for beginners, could represent a challenge, see a danger for a child. As evidence, a young girl refused to descend and a boy was seriously injured. The Court therefore refused to consider the argument advanced by the Defendant to the effect that the trail was very easy and wide, and as such, an accident was not foreseeable and therefore, that the event must be considered to be a simple accident, for which it cannot be held responsible.
- The instructor never attempted to obtain assistance from another person, be it another instructor, a ski-patroller, or even a passing adult. Moreover, she did not even have a means of communication on her, such as a walkie-talkie or a cellular.
- The instructor gave no instruction whatsoever to the children regarding where and where not to descend, at what speed to go, how often to stop, whom was to be the leader of the group to be followed, etc.
- The presence of children, who can be unpredictable, requires a heightened supervision.
- Although skiing is an activity which has risks, the obligation to take the necessary means to make this activity safe was befuddled. In this specific case, if the instructor would have remained with the group, the boy would most probably have followed, doing turns in the snow-plow position, with frequent stops and would have controlled his speed. In leaving him go alone and without markers, the instructor cannot contend to having taken the necessary means in order to ensure the security of this child place in her custody. The child was moreover abandoned to himself.
As such, any contract with a ski school contains an implicit duty to ensure the surveillance and security of the students. It is an obligation which is a part of the contract, even if it is not explicitly foreseen. The Court reiterates that it is an obligation of means which obliges ski schools to take the “reasonable precautions” in order to ensure the safety of its students.
The Court of Appeal also recognizes that it is true that there can be an acceptance of the risks related to participating in skiing by the parents who enrol their children in the ski lessons. However, this acceptance is limited to the foreseeable or inherent risks of skiing. The risks and accidents due to a failure in surveillance or vigilance of the instructors cannot be the subject of an acceptance of risks.
I've been in that situation. It sucks. But you can't send third-graders off down the hill with no supervision. They'll do stupid things like "forgetting" to turn.