Survey of Ski Law in the United States

Ski law survey: Ski Season 2005-2006

By James H. Chalat

Ski safety legislation, enacted with great urgency in many states in the late 1970s and early 1980s, has in more recent years been subject to reinterpretation by the courts, and to amendment in state legislatures. Most statutes began as so-called "inherent danger" statutes that exculpated ski area operators from liability for those hazards considered inherent to skiing. This begged the question of how to define the sport's "inherent dangers." Some states, including Colorado, construed and do construe their statutes to require a jury to determine the nature and extent of the duty owed by a ski area operator relative to an alleged "inherent danger." Others, notably Idaho, hold as a matter of law that any injury not caused by an enumerated, statutory operator duty is a risk "inherent" in the sport. A reasonable standard of care, with or without statutorily-defined duties, has been imposed in a number of states by legislative act, or common law.

The question of what duty of care skiers owe to one another remains in dispute. Many states now include risk of skier/skier collision and, specifically, risk of another skier failing to ski within their ability, within a statutory list of potential inherent dangers. Within the context of litigation between skiers, those courts considering it have agreed that this does not include a skier-employee of the operator negligently colliding with a skier guest. While a few states, such as Alaska, have statutes that expressly provide for recovery in true skier/skier cases, those that have failed to directly address the issue have varying court records. Some courts have rejected altogether applicability of what they view as an immunity act for the sole benefit of ski area operators to these cases, while others have permitted both common law and per se negligence claims where such a statute is present.

While skiers' potential civil liability has been widely expanded in recent years, recognition of skiers' potential criminal liability is also presently on the rise. Conduct on the slope was the basis for a criminally negligent homicide prosecution in Colorado, upheld by its Supreme Court in 2000. In 2003, another Colorado court sentenced to jail for 240 days a 20-year-old snowboarder who, while intoxicated, had crashed into a group of children, injuring two. For lesser offenses, a handful of states have begun adding teeth to their skier safety statutes, creating misdemeanor charges for skiers who conduct themselves recklessly, or fail in other statutory duties.

As to lift incidents, many states have declared tramway operators not common carriers. However, the question of whether ordinary or the highest duty of care is owed to passengers remains in dispute among the states. The declarations that tramway operators are not common carriers reflects a big picture of the industry's relation over time to the legislature and to the public. As the sport of skiing itself has changed to include different types and styles of snow sports, many in the industry have found themselves with antiquated statutes that have failed to account for the sport's development.

The industry has rushed back to the legislatures demanding a statutory fix to unfavorable, and occasionally unpredictable, decisions. In addition to express inclusion of snowboarders and "extreme" styles, the industry has discretely pushed to have their entire property areas subject to liability protection, and to have parental waivers of all types validated. A few other areas of emerging interest include avalanche liability, and helmet use. The growth in helmet use on the slopes, and in the supporting research, has reached a point where providing and expecting helmet use, particularly in the children's ski school context, fairly defines operator reasonable care.

Click here for an overview of ski law by state.

2001 Worldwide Copyright of Chalat Law Offices, P.C., Revised 8/1/01, LJC