Ski Law For Beginners, Intermediates and Experts, by Linda and Jim Chalat. Skier/snowboarder safety has become a significant issue for the ski industry. Its significance is derived from two forces: the competition for the national skiing market, and national attention drawn to ski safety by the media frenzy stimulated by celebrity skier deaths in 1999, and recent homicide proceedings in Colorado. First published in Trial, August, 2001.
By James H. Chalat, Esq. and Linda J. Chalat, Esq.
First published by Trial (August, 2001)
- Skier/Snowboarder Safety and the American Ski Industry
- Skier/Snowboarder Deaths and Injuries
- Development of the Duty of Care in Ski Cases
- State by State Ski Statutes
- Duty Owed by Ski Lift Operators
- Types of Ski Accidents
A successful New York ballet dancer is run down on an intermediate slope by a beginner skier who is not watching where he is going. She suffers an anterior cruciate ligament rupture, ruining her career. Can you recover damages for the ballerina?
A Virginia fireman is skiing with his son on a recently opened, man-made slope. Ski area plans provide for a light-weight, bright orange marking fence to be installed at the slope’s sharp drop-off to skiers’ left. However, the slope is opened prior to the fence installation, and the fireman is critically brain injured when he falls, then slides off the drop off. Is the ski area operator liable?
A young man, riding on a fixed grip two passenger lift with no safety bar, loses consciousness, and slips out of the chair, rendering him severely brain injured. Did the ski area operator have a duty to install a safety bar on the lift?
The outcomes of these cases are answered on a case by case basis, as ski law varies from state to state, and the duties, immunities and liabilities of skiers (and snowboarders), ski area operators, lift operators and related parties are treated differently under each state’s statutory, common law, and regulatory scheme.
Skier/snowboarder safety has become a significant issue for the ski industry. Its significance is derived from two forces: the competition for the national skiing market, and national attention drawn to ski safety by the media frenzy stimulated by celebrity skier deaths in 1999, and recent homicide proceedings in Colorado.
During the 1999-2000 season, America’s $1.5 billion ski industry reported 52 million skier/snowboarder visits. However, the number of skier visits has not grown over the past twenty years. Since 1980 the industry has reported about 50 million skier visits each year, even though more money than ever is being spent by consumers on recreation. As a result of this static market inter-area competition has become fierce which in turn has weeded out many financially weak ski resorts. The number of American ski resorts has fallen, since 1980, by about one-third, from 735 to 503 areas. Just over the past year, the stock of one of the two publicly held ski resort operators has been pounded on Wall Street.
On one hand, the industry publicizes skiing’s safety in comparison to other outdoor activities such as scuba diving, swimming and bicycling. Many resorts work to attract families, by recommending certain slopes for children and families, and promoting areas as family friendly, thus weaving a safety message into the marketing program.
On the other hand, the industry aggressively markets itself on the Internet, in magazines, movies, and billboards with glitzy images of high risk, high speed, airborne and trick skiing/boarding. Moreover, because of the steady rate of growth of snowboarding, against a steady decline of young skiers, the industry finds itself in a marketing campaign aimed directly at 18-30 year old males who are the most accident prone group in winter sports.
The highly competitive and refined nature of the modern industry contrasts sharply with the rustic, European origins of the sport, which catered to a wealthy, urban adult class. Resort operators are now sophisticated, automated, well-financed, high-tech businesses, which exercise the power of capital in the political, transportation, labor and insurance markets.
Accompanying changes in the profile of the owner/operator have been the changes in the nature of the sport itself. High-speed lifts that whisk four or six persons per seat up a slope at speeds of 1000 fps have increased the density of skiers on the slopes. And not all those going up the hill are coming down on skis – last season Colorado slopes had about an 80/20 split between skiers and snowboarders, while nationally snowboarders accounted for 26% of total ski traffic.
Although the industry has undergone major changes, and in fact many safety measures can and are implemented, the industry still seeks protection from tort liability under antiquated doctrines of inherent risk which stem from a purist’s view of the sport but which pay no heed to the modern realities of the industry.
Annually, in the United States, there are an average of 34 skier deaths; additionally, there are an average of 39 serious, non-fatal injuries, such as paraplegia, or severe head trauma. Other studies have determined that the per capita traumatic death rate is 2.67 deaths per million skiing participants. When measured on the basis of skier visits—that is, one skier coming to the slopes for one day—statistics indicate that skiers suffer a national death rate of 0.55 deaths per million skier visits.
But, there are a significant number of other injuries. The national injury rate for downhill skiers is 3.37 injuries per 1,000 skier visits (“SV”). Injury rates for snowboarders are 3.03 injuries per 1,000 SVs. An SV is defined for purposes of the injury study in the same way as a skier visit is defined for marketing studies, e.g., one skier/snowboarder visiting the slopes for one day.
Regrettably, beginning skiers are much more likely to be injured than experienced skiers. Advanced male skiers are least likely to suffer injury (.88/1,000 SV), while beginning female skiers are at the highest risk (9.48/ 1000 SV.)
The most common injury is the Grade III knee sprain, defined as a complete rupture of at least one of the knee ligaments (usually the anterior cruciate). These injuries account for 22 percent of all skiing injuries. The Grade III knee sprain is now even more common in skiing than the lower leg fracture which, before the modern alpine release binding, was the most frequent injury.
Fractures of the lower leg are still common, as are impact fractures to the femur, acetabulum, clavicle, and the thumb. Infrequent, but severe injuries and deaths occur due to traumatic brain and spinal injury, facial fractures, hypothermia, and high-altitude illnesses such as HAPE (High Altitude Pulmonary Edema), hypoglycemia (especially in diabetic patients), and heart attack.
When applying the overall injury rate to the frequency of skier visits in the United States, statistics indicate that there will be approximately 165,000 ski/snowboard-related injuries each year in the United States. One study has indicated that the cost of skiing-related knee injuries in the United States exceeds $250 million annually. A well regarded Summit County, Colorado trauma team recently reported that nationally in 1997 there were 17,500 head injuries associated with skiing and snowboarding. It is undisputed that skiing and snowboarding produce a substantial number of injuries, which entail considerable medical costs, and in certain cases, pose serious liability and safety issues.
The sport has penetrated into every state, and across all socioeconomic strata. About 10.4 million Americans either ski and or snowboard. Thus, many plaintiff’s personal injury lawyers, even those who hail from states with no snow, will counsel, litigate and try ski cases.
In this article we articulate the different types of ski accidents, and theories of recovery. However, we can only point out major differences between several states’ ski laws. During the 1970’s and 1980’s many states, enacted “tort reform” packages which included special interest legislation purporting to govern the duties, and liability of skiers, and ski area operators. Over the past twenty years, state appellate courts have interpreted these statutes, often with divergent holdings; and then, in some states, industry lobbyists went back to the legislature for amended legislation. Thus, the first rule, when handling a ski accident case, is to check the local law in regard to the particular facts of your client’s case.
Since the first ski accident case, the primary question to be answered, and sometimes the only question to be answered, is whether the injury or death was caused by a risk assumed by the skier. In Wright v. Mt. Mansfield Lift, Inc., the skier caught her ski on a bush, fell and was hurt. On summary judgment against the skier, the court held that skiing accident cases would be governed by the doctrine of inherent risks, “one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary.”
The doctrine of inherent danger is the equivalent of primary assumption of risk. Under primary assumption of risk, no duty is owed to the participant. Nearly thirty years after Wright v. Mt. Mansfield, the Vermont Supreme Court ruled that the inherent danger rule had to be limited in its application, given the tremendous changes in the industry.
With the case of Sunday v. Stratton, ski accident cases moved out of the context of a “non-duty” and joined mainstream tort liability doctrine founded upon notions of reasonable care and foreseeable risk. Sunday’s case involved a beginner skier who suffered a paralyzing injury when he also caught his ski on a bush. He sued, arguing that modern grooming practices should have removed the hazard. A jury agreed. On appeal, the Vermont Supreme Court noted that the inherent danger rule, as urged by the defendant, was the equivalent of the rule of primary assumption of risk. “The claim is that the brush was an inherent danger of the sport. This is the equivalent of, and better put as, a claim that defendant owed plaintiff no duty with respect thereto, sometimes referred to as ‘primary’ assumption of risk’.” The court applied to the ski area operator the same rule of ordinary care as were applicable to business visitors on premises.
The Vermont Supreme Court disposed of the inherent danger rule by stating that every fall is not a danger inherent in the sport, and “if the fall is due to no breach of duty on the part of the defendant, its risk is assumed in the primary sense, and there can be no recovery. But where the evidence indicates existence or assumption of duty and its breach, that risk is not one ‘assumed’ by the plaintiff. What he then ‘assumes’ is not the risk of injury, but the use of reasonable care on the part of the defendant.”
In response to the Sunday ruling, ski area operators went directly to the state legislatures with a model “Ski Area Safety and Liability Act” with the express purpose of reestablishing the “primary assumption of the risk in inherently high risk activities.”
State legislatures, sensitive to the economic clout of a billion-dollar business, were receptive to ski area claims of a “wave of litigation.” Since 1978 all but three states, with any significant ski industry within their borders, have adopted a form of ski safety legislation. Predictably, state ski statutes vary and identical accidents are treated differently from state to state due to the variations in state law. An injured plaintiff may have a recovery under the ski laws of one state, while another claimant, injured under identical circumstances, but in another state, may have no claim.
Eight states (CT, ME, NV, NJ, NM, NY, NC, WA) have enacted ski law statutes which generally preserve the doctrine of ordinary care. Mention of the inherent dangers of skiing tempers ordinary care, in several of these states. However, these states abstain from the strict adaptation of the primary assumption of risk rule. Although certain of these state statutes include “inherent danger” language, on balance, these states’ laws, taken as a whole, preserve the rule of Sunday v. Stratton, that skiers and ski area operators must exercise reasonable care.
Sixteen states (AS, CO, ID, MA, MI, MT, ND, NH, OH, OR, PA, RI, TN, UT, VT, WV) have adopted various forms of “inherent danger” statutes. The scope and effect of these statutes range across a broad spectrum. At one end of the spectrum are states which adopt a strict primary assumption of the risk rule, stating that skiers are solely responsible for injury while skiing, irrespective of how the injuries occur. Other states, notably Colorado, narrowly interpret inherent dangers, and thus allocate responsibility between skiers and ski area operator.
Three states with significant ski economies, (CA, WY, WI), have not adopted ski safety statutes, but have an applicable legislative scheme. Ordinances in five California counties have been held to establish an inherent danger scheme. In Wisconsin inherent dangers reduce recovery in any recreational accident case, as a component of contributory negligence. In Wyoming, a Recreation Safety Act, sets out standards of conduct and assumption of risk rules which cut across a broad range of recreational activities.
Neither Arizona, nor Virginia have statutes explicitly referring to ski liability, although both states have ski areas within their jurisdictions. Interestingly, it was a Virginia jury which entered the largest verdict ever awarded in a downhill ski accident case, $6,200,000.00. The case involved a 41 year old fireman who fell and slid over the edge of a trail, down an embankment and was severely injured. Similarly, the only reported Arizona ski accident case, Miller v. Arnal, is the leading case on the duty to rescue.
In contrast to the doctrine of assumption of risk, and any variant of the inherent danger rule, the ski area operator is typically held to a duty of care concerning the construction, operation and maintenance of its lifts. In the earliest ski lift cases, as in Wright, (where the Court had found precedent in Justice Cardozo’s ruling in the amusement park accident case of Murphy v. Steeplechase) courts looked to the law regarding amusement parks in order to determine the standard of care applicable to the operation of ski lifts.
In the earliest reported cases, courts imposed a high standard of care, as if the ski lift was an amusement ride. In Colorado, the courts held that a ski area operator had a duty to exercise its lifts with the “highest degree of care commensurate with its practical operation.” Colorado steered away from a common carrier analysis, although it noted that the highest degree of care was applied to other transportation facilities. Moreover, the Colorado Court observed that New York and Vermont had imposed a duty to exercise the highest degree of care upon ski area operators in the operation of their lifts.
California has, by judicial decision, imposed an enhanced duty of care upon ski area operators, concerning the operation of lifts. California reasoned that the ski lift is similar to an amusement park ride, or a common carrier. Other states hold ski area operators to the standard of reasonable care.
The first Ski Act was the Michigan Ski Area Safety Act of 1962. Michigan’s Act was a direct response to a catastrophic lift failure. Its goal was to establish an administrative body empowered to regulate the construction, installation, repair, use, operation and maintenance of ski lifts, for the protection of the public. The agency has power to inspect lifts, review plans, issue permits, and order the cessation of operation.
The Michigan scheme was adopted in Colorado in 1965. The Colorado scheme established a Passenger Tramway Safety Board. The regulations promulgated by the Board rely heavily on the American National Standards Institute B-77 (1992) Code.
In the mid 1960’s other states followed the Michigan and Colorado example and adopted regulatory guidelines concerning ski lifts. The need was strongly felt as the industry was at the beginning of a lift building boom, adding Vertical Transportation Feet per Hour (VTFH) at a quickening tempo. Between 1983 – 1989 the skiing industry was building an average of 93 new lifts annually, in the United States and Canada. Since 1989, the number of new lifts has decreased, but the ones installed have higher speeds, and longer lifts, the industry has averaged 105,000 VTFH of new construction.
Since the surge of ski statutes, which the country witnessed in the late 1970’s and early 1980’s, many states, such as Massachusetts, have integrated the statutory schemes relating to ski lifts and skiing liability. Other states, including California, have adopted separate statutory provisions, applicable to aerial tramways.
Ski Area Liability—downhill accidents
Often, in jurisdictions with a Ski Act, a claim will arise against a ski area operator for a per se violation of one of the statutory duties imposed by the Ski Act. These common-sense responsibilities include the duty to mark trails and slopes, give warning of trail grooming operations, and cover manmade obstacles not readily visible from 100 feet away. Skiers have concomitant statutory duties to ski within their abilities, to maintain control and a lookout, and to avoid collisions with objects and skiers below them.
Downhill skiing accident cases include the most common cause of severe skier injury and death: collisions with manmade or natural objects. Whether the ski area has a duty to mitigate this risk is at the heart of many cases, and is a key differentiated characteristic of the various state laws.
For instance, a California case has held that a skier’s claims were not barred under primary assumption of risk rules when he collided into a trail sign. Under most of the inherent danger ski legislation, collisions with manmade objects are an inherent danger of skiing.
In California artificial ridges, or “snow walls,” on a ski trial were atypical hazards which “artificially increased the risks to skiers over and above those inherent in the sport.” Thus, claims were not barred by the inherent risk defense.
In sharp contrast, in Michigan, any type of collision with a natural or manmade object has been held to be an inherent danger, and a claim based thereon is barred. A skier who had a collision with a tension tower, part of a rope tow lift, is barred from his claims, notwithstanding facts similar to those in the California case of Van Dyke, cited above. Although California might allow man-made snow features to be the basis of a claim, in Michigan, such a claim is totally barred.
Most skier deaths occur when a skier smashes into a tree, but other natural objects or natural terrain features, cause accidents, such as drop-offs, culverts, ditches, and roadcuts. For example, in two Colorado cases, Peer and Pizza, the plaintiffs were thrown out of control by a roadcut across a ski run. In Pizza, the court held that ski area operators enjoy a rebuttable, but not a conclusive presumption, that a ski accident was the skier’s fault, which case was followed by the trial in Peer where the jury found that the presumption in favor of the ski area had been rebutted by the plaintiff and awarded the plaintiff $5 million.
In response to the Peer verdict, the ski industry returned to the General Assembly in 1990 and lobbied for amendments to the 1979 Colorado Ski Safety Act. The core of the 1990 amendments were the “inherent danger” amendments and damage limitations, asking to restrict claims in the first instance, and then to cap damages as well.
In Graven v. Vail, the Colorado Supreme Court adopted a narrow construction of statutory inherent dangers and risks, and thus adopted a third approach to the handling of downhill accident cases. This approach can be viewed as a moderate compromise between California’s traditional reasonable care test, and the ideological extremism of the Michigan courts which have essentially held that ski areas have no duty to their customers.
Graven fell into a ravine adjacent to a ski run and ultimately crashed into a tree at the bottom of the ravine. The Court held that “Skiing is a dangerous sport. Ordinary understanding tells us so, and the legislature has recognized that dangers inhere in the sport. . . . Not all dangers that may be encountered on the ski slopes, however are inherent and integral to the sport, and this determination cannot always be made as a matter of law.”
Graven followed the precedent set by the Utah Supreme Court in Clover v. Snowbird, and other opinions which adopted a moderate approach to the inherent danger problem.
A variant of ski area liability occurs when an employee breaches a duty, such as when a ski accident occurs during a lesson conducted by a ski instructor employed by the ski area operator. There is no statutory provision explicitly dealing with such a case, although courts have held the ski instructor has a duty of due care. This type of case also covers negligently administered first aid or negligent rescue, but no provision in the statute contemplates such a case.
In Spence v. Aspen, the court held that the ski patrol has a duty to exercise “reasonable care” in the care and treatment of an injured skier, even if the skier injured herself from a lack of due care.
Other types of downhill skiing accidents include those related to avalanches, which have, on several occasions, led to lawsuits. In addition, there are cases involving ski equipment and racing accidents. However, these cases are often determined on summary judgment in favor of the defendant, on the basis of waiver. However, a general waiver required at the time of purchase of the lift ticket has been held as contrary to public policy by Vermont.
Moreover, accidents occur involving snow cats and snowmobiles on the slopes. In Phillips v. Monarch, a skier collided with a snow-grooming snow cat. The court held that the duties set out in the Ski Act, pertaining to warning skiers of grooming operations, could not be abrogated by the waiver printed on the lift ticket. In Lee v. Aspen, the trial court ruled that as a matter of law, colliding with a snowmobile operated by a ski area employee is not an inherent risk.
Ski Area Liability—lift accidents
Eighty-five percent of lift-related accidents occur while the skier is loading or unloading. A lift-loading accident occurs when a skier fails to load properly. Another type of lift-loading accident involves a misload or “hanger,” where the passenger never gets seated properly in the chair and is carried by the chair up the line seated incorrectly, and then falls. Ski lift unloading accidents account for 50 percent of the lift-related injuries, and ski-lift loading accidents account for 35 percent of lift-related injuries. The most serious accidents involve the failure of the cable or carrier. Although only 2 percent of all lift-related accidents involve such a failure, these accidents account for half of all ski lift-related deaths. Mechanical failures typically result from design or manufacturing defects, often in concert with maintenance errors.
Loading and unloading accidents occur because of the inexperience, or error of either the skier, the lift attendant, or a combination of the two. Loading accidents occur when the skier fails to reach the “load here” board on time, does not get seated properly and then falls on the ramp, or is carried along by the lift then falls. Some skiers, who load properly, slip out or catch an edge of a ski on the loading ramp, and fall out of the chair lift. Loading accidents can also be caused by inattentive lift operators who fail to stop the chair once it is evident that there has been a misload. Thus the chair can carry an improperly loaded skier to great heights, before he or she falls out of the lift.
Unloading accidents involve skiers who fall on the unloading ramp, or fail to unload at the proper point on the ramp. Again, they can aggravate the accidents if the attendant fails to stop a lift, thus depositing more skiers into an area where a skier has fallen and obstructs the ramp.
Lift failures between the loading and unloading terminal are rare, but deadly. These accidents typically involve one of three types of failures. The failures are typically a design and/or manufacturing defects, often in concert with maintenance errors. First is a failure of the grip or hangar which holds the chair or gondola to the cable; second is a failure of the wire rope, usually at a splice; third, is a failure at the terminal of the drive mechanism, or a detachment of the drive or “bullwheel.”
An applicable ski safety statute may include, along with a downhill skiing liability scheme, provisions relating to the skier’s duty of care in riding lifts. These duties typically include the duty to have the requisite skill to ride the lift safely, to load and unload only at designated places, to observe and follow all signs concerning the safe use of the lift, to refrain from jumping from a lift, or dropping anything from a lift.
Where ski statutes impose specific duties upon ski areas as operators of lifts, and upon skiers as passengers, lift accident cases can be analyzed under negligence per se rules, based upon the specific statutory duties. In such instances, it has been held that it was proper for a trial court to give both the negligence per se instruction, under the statute, and the common law instruction that the ski area operator must exercise the highest duty of care. An argument can also be made that at some point, when unloading a chair, the passenger becomes a skier and must accept the inherent risks of skiing, such as traffic cones to mark the edge of the unloading ramp.
Skier/snowboarder collision cases
Collisions between skiers, or skiers and snowboarders, produce a unique type of case. In a downhill skiing accident case, the standard of care of a ski area operator is diminished to some extent by a doctrine of assumption of risk, as expressed in the Ski Act and as interpreted by case law. However, in a skier/skier collision, there is no assumption of risk, but an operating presumption that the uphill skier is at fault and is responsible for damages.
Collision cases are determined on a per se basis, under the statute, which requires all skiers to ski in control, exercise caution, maintain a lookout, yield to skiers already on trails, and avoid collision with skiers below. In an action between skiers, the risk of a skier/skier collision is not an “inherent risk.” Thus, the “hittee” has a right of recovery against the negligent “hitter.” A rebuttable presumption arises against the uphill skier that is similar to the presumption against the following car in a rear-end car accident case.
Ironically, however, a sharply divided California Supreme Court has held that in some instances a skier assumes the risk of a skier collision.
The trial of Nathan Hall was the first case in Colorado where felony reckless manslaughter charges were brought against a skier responsible for a fatal collision with another skier on a slope. The case went to trial after remand from the Colorado Supreme Court. People v. Hall, 999 P.2d 207 (Colo. 2000). The jury found Hall guilty of criminally negligent homicide.