Ski accident may spur strong claims

Liability limits citing the sport’s inherent risks may not apply in the Sugarloaf derailment, lawyers say.

Portland Press Herald
By John Richardson
January 12, 2011

It’s an uphill battle to sue a Maine ski resort and win, according to Maine lawyers.
As in other states that have valuable ski industries, Maine’s law and court rulings clearly say that skiers and snowboarders accept responsibility for the sport’s "inherent risks," from skiing into a tree to getting tangled in a lift.

However, the chairlift derailment that injured eight skiers at Sugarloaf on Dec. 28 appears to be a very different kind of accident, and could lead to one or more strong injury claims, according to lawyers who represent plaintiffs in such cases.

Sugarloaf representatives have been in touch with the injured skiers and are "addressing their concerns and needs as best as we can on an individual basis," resort spokesman Ethan Austin said Tuesday.

Austin said the resort has liability insurance and legal counsel to handle court claims, although no member of the potential defense team was available to be interviewed Tuesday.

Maine ski resorts experience many injuries, and even some deaths, from accidents on the slopes. Successful damage claims in court are more rare. That’s true in part because some claims are settled. But it also is a function of the state’s liability law.

Maine adopted its first laws limiting ski resorts’ liability in the late 1970s, at the same time similar laws were passed in other states. The laws, which established the principle of inherent risk, came in response to court decisions that some saw as a green light to expensive injury claims against the industry.

A 1977 Maine law that created some of the first liability limits said: "Maine ski areas are presently experiencing a crisis, similar to the medical malpractice crisis, in the availability and price of their liability insurance."

Today, Maine has a standard "inherent risk" liability law, said Jim Chalat, a plaintiff’s attorney in Colorado and an expert on ski law. It says skiers must protect themselves by skiing within their skill levels and avoiding objects and other skiers.

"A downhill skiing case against a ski operator is very difficult to win, but when a (resort) mismarks a run or misleads an inexperienced skier into a double black diamond trail … those are the sorts of negligence instances where there would still be room for a lawsuit," Chalat said.

"I myself have never had a successful suit against a mountain," said David Van Dyke, a lawyer in Lewiston. "I had one where there was a person injured getting off a lift, and that was barred on the same theory, that it was an inherent risk of skiing."

Van Dyke said he thought he had a good case a few years ago, when a woman hit a bump on a tubing run, bounced off a trail and broke a hip. Maine’s Supreme Judicial Court ruled that the accident was an inherent risk of skiing, he said.

Maine lawyers have won some cases.

In 1999, the Supreme Court upheld a $600,000 jury award to a woman whose husband was killed at Sunday River in 1993. The jury ruled that the resort did not do enough to warn Andrew Hansen about an icy patch on the expert White Heat trail before he slid off the trail into a tree.

The likelihood that Sugarloaf will be held liable in court for the derailment will depend on the causes of the accident, which is still being investigated. Lawyers said the inherent-risk standard should not prevent any injury claims in the case.

Maine’s law specifically says the resort is responsible for the safe operation of chairlifts.

"The statute talks about inherent risks, but then it expressly excludes a ski operator’s negligence in operation or maintenance of a lift," said Benjamin Gideon, an attorney with Berman & Simmons in Lewiston, which represents five of the skiers who were injured at Sugarloaf.

The clients have not decided whether to file a claim against Sugarloaf, he said, but if there is a case, state law won’t get in the way.

"There’s no immunity for this issue for this potential claim," Gideon said. "I don’t even think the inherent-risk defense will be argued in this case."

While there is no direct precedent in Maine case law, serious chairlift accidents in other states have not been ruled to be an inherent risk of the sport, said Chalat.

"The inherent risks in skiing and the inherent risks in riding a passenger tramway do not include the cable coming off of a sheave wheel," he said.