The New Jersey Ski Statute, N.J. Stat. Ann. §§ 5-13 et seq., defines skier and operator responsibilities and provides for skiers’ (tobogganers and tubers included) assumption of the “inherent risks” of their sport (§ 5-13:5). This includes obvious, man-made hazards that are impracticable for the operator to remove. Id. at § 5-13:3. Tramways and lifts are regulated separately at §§ 34:4A-1 et seq. In addition to statutory assumption of inherent risks, skiers are completely barred from recovery where they have breached their own duties. New Jersey’s comparative negligence statute, §§ 2A:15-5.1 et seq., is only applicable where an operator has breached their duties under the Act, provided they had knowledge of the breach and a reasonable time and manner in which to comply. Id. at § 5-13:3. Injured skiers must provide written notice to an operator within 90 days as a precursor to suit, and must bring suit within two years, unless they are minors, in which case the statute of limitations is tolled until they reach the age of majority. §§ 5-13:7 to :9. Skiers without proper lift tickets are treated as trespassers. §5-13:4. Volunteer ski patrol members granted immunity for good faith emergency service provision, excepting anything related to use of a motor vehicle, or willful and wanton misconduct. N.J. Stat. Ann. § 2A:53A-12.
Dearnley v. Creek, A-5517-10T1Superior Court of New Jersey, Appellate Division (2012)
Wife was employed at retail store of ski resort and as part of her compensation benefits, she and her family members were entitled to a free season pass to use at the Vernon ski resort. On January 4, 2009, husband was snowboarding at the Mountain Creek ski area when he suffered an accident that he attributes to defendant’s negligence and breach of its duties under N.J.S.A. 5:13–1 to –11 (the Ski Act). As a result of the accident, husband required immediate emergency surgery to stabilize his back by the implantation of metal rods and screws and ultimately spent approximately six weeks in the hospital, had to endure three surgeries, and underwent weeks of physical therapy and rehabilitation.
On October 13, 2009, plaintiffs filed their personal injury and per quod complaint against defendant in the Law Division, Sussex Vicinage. Defendant’s answer listed ten affirmative defenses, but did not assert that the 2008 agreement’s exculpatory provisions barred the action.
Two months later, on December 21, 2009, while his wife was still employed by defendant, husband applied for a season pass for the 2009–2010 winter season. He was presented with, and signed, a two-page document entitled, “Mountain Creek Resort, Inc.2009–′10 Season Pass Wavier”. In bold, capitalized print at the top of the first page, the 2009 agreement stated, “RELEASE, WARNINGS AND DISCLAIMERS ON SKIING.” The release stated that all claims, “INCLUDING THOSE OF WHICH I AM NOT AWARE AND THOSE NOT MENTIONED IN THIS RELEASE. THIS RELEASE APPLIES TO CLAIMS RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW,” were waived. After husband signed the release in exchange for the 2009 ski pass, the defendant filed for summary judgment, and the trial judge granted the motion and dismissed the case. The court of appeals agreed, stating “Mr. Dearnley’s releasor’s remorse is an insufficient basis to return this matter to the Law Division for trial.”
Angland v. Mountain Creek Resort, Inc., 57366 A.3d 1252, Supreme Court of New Jersey, 2013213 N.J. (2013)
Neustadter v. Mountain Creek Resort, N.J. App. (2007)
Assumption of risk is a complete bar of suit and serves as a complete defense to a suit against an operator unless the operator violated duties or responsibilities. Ski statute imposes duty for ski operator to remove man-made obstacles as soon as practicable, but provides exception for man-made fencing or poles which are necessary for the normal operation of a ski resort. The statute also provides that an operator is only responsible for obvious man-made obstacles when it has knowledge of the failure to remove the objects or should have known of the condition and time to correct the condition.
Prior to 2006
Murray v. Great Gorge Resort, Inc., 823 A.2d 101 (N.J. Super. Ct. Law Div. 2003) held that by virtue of express duties to post notice of daily ski conditions and other warnings, operators have an implied duty under the Ski Statute to inspect runs. Verdict for plaintiffs in tobogganing accident applying the New Jersey Ski Statute and comparative negligence, in Brett v. Great American Recreation, Inc., 677 A.2d 705 (N.J. 1996). In this well-written opinion, the court succinctly distinguishes between the pure assumption of risk regimes of some states, compared to the view that certain hazards, manmade and natural, can, in exercise of due care, be reduced or eliminated. Brett and five others slid down a slope at night, lost control, and went off an embankment into a utility pole; although they were there without permission, tobogganing and sledding at night on the hill was a common practice known to the defendants. Under the statute, operators have a duty to remove or lessen obvious, manmade hazards; a breach of any statutory duty is negligence per se. UnderPietruska v. Craigmeur Ski Area, 614 A.2d 639 (N.J. Super Ct. Law Dev. 1992), “any claim alleging the negligent maintenance, construction or operation of a chairlift removes that cause of action from the reach of [the Ski Statute].” Regarding minors, the court in Goss v. Allen, 360 A.2d 388 (N.J. 1976) took notice of the fact that skiing is a recreational activity enjoyed by persons of all ages, determining that skiing is not so inherently hazardous as to warrant the automatic application of an adult standard of care (standard of care to be determined on case by case basis; 17 year old novice only held to duty of a minor).