This article treats two types of ski accident cases: (1) the downhill skiing accident which leads to a claim against the ski area operator, (2) the ski lift related accidents which lead to claims against the ski area operator and the lift manufacturer.


Ski Area’s Liability For Skiing Accident

By James H. Chalat

Scope of article.

The industry is tight lipped about the number of claims that arise because of injuries at ski areas. One reason is that the industry has consistently obtained favorable special protective legislation, on the industry’s assertion that personal injury litigation was strangling ski area operators. {McCaffery, Skiers Find the Fall Line in Challenging the Constitutionality of Modern Ski Legislation, 1 Seton Hall J. Sport L. 269 (1991); Faber, Utah’s Inherent Risks of Skiing Act: Avalanche from Capitol Hill, 2 Utah L. Rev. 355 (1980); Fry, Lint Pickers in the Snow, Snow Country: The Year-Round Magazine of Mountain Sports and Living (Feb. 1990) at p. 6}. Two commentators conducted an informal poll. It revealed that most recreational skiers attribute the increase in ski lift prices to "frivolous" or "bogus" lawsuits and awards. {Sanders, Gayner, The Cold Truth: Have Attorneys Really Chilled the Ski Industry? 2 Fordham Ent. Media & Intell. Prop. L.F. 125 (1992) Fn.6 }

This public perception is at sharp odds with the facts. The industry is enjoying economic growth, and consolidation. Insurance prices remain reasonably steady, relative to earnings growth. In one authoritative study, the author noted that "if one looks at liability insurance costs compared to either total revenue or gross operating revenues, the increase in insurance costs appears more reasonable. Liability insurance to total revenue increased from 3.1% to 4.3% and liability insurance to gross operating revenue increased from 2.5% to 3.2%." As the industry consolidates, larger companies which control numerous areas, will have stronger bargaining power over insurers. {Goeldner, Business Research Division of the Graduate School of Business Administration at the University of Colorado, Boulder. Economic Analysis of North American Ski Areas 1976-1993; Derouin, Ski Area Insurance Programs, Ski Area Management (Vol. 33, No. 5 September 1994) pp. 59 – 61; Chalat , Colorado Narrows Construction of the Inherent Danger Rule, 45 Trial Talk 10 (Colo. Trial Law. Assn., April 1996); Taking a Dip in the Shark Tank, Ski Area Management (Sept. 1988) at 13; Sanders, Gayner, The Cold Truth: Have Attorneys Really Chilled the Ski Industry? 2 Fordham Ent. Media & Intell. Prop. L.F. 125 -127, fn.6 (1992)} The few publicly available statistics indicate that only 1percent of all injuries result in some type of claim activity, and a review of the cases show that very few result in any awards. However, the potential for severe injury and death in the sport can make any individual case substantial. In such cases, the question of liability and damages are profound. The outcome of the case will have immeasurable impact on the quality of life for the victim or survivors. Thus, the attorneys undertaking a ski accident case must be able to first evaluate the case so as to advise the client whether the claim is meritorious. Second, the attorneys must have a firm understanding of the law and the practical application of the proofs in order to successfully advance the claim.

This article addresses the proof of liability against a ski area operator for a skiing accident case. The article takes its perspective from the modern context spawned by the historical tension created by the competing arguments of inherent danger (often made with the strength of a per SE standard based upon a statutory provision) against the contention that a duty to exercise reasonable care arises from the industry’s ability to mitigate hazards which once were considered "inherent." This article treats two types of ski accident cases: (1) the downhill skiing accident which leads to a claim against the ski area operator, (2) the ski lift related accidents which lead to claims against the ski area operator and the lift manufacturer. A major change has been wrought in the law by the proliferation of statutory provisions that concern skiing and allocate risk, responsibility, and liability.

Other types of ski accident cases which are noted, but not addressed include: cases involving the failure of bindings, or other personal equipment of the skier. In a separate article, the author treats the proof of negligence in a case of one skier who sues another skier for negligently causing a skier/skier collision. Skiing equipment cases are not addressed.


* This is the scope of the article of the same title published by American Jurisprudence Proof of Facts, 3d Series. For the complete article please contact West Publishing.