North Carolina has adopted a ski safety statute, N.C. Gen. Stat. §§ 99C-1 to 99C-5, that provides for the creation of duties among skiers, passenger skiers, and operators. The breach of any of these statutory obligations constitutes negligence per se. Id. at § 99C-3. Tramways are subject to Department of Labor rules and regulation (N.C. Gen. Stat. § 95-116), and an operator of a tramway is not a common carrier (N.C. Gen. Stat. § 99C-5). Skiers have a plenitude of duties including skiing within their abilities, maintaining control, heeding warnings, using lifts safely, and not contributing to the injury or harm of another, or their property. Id. at § 99C-2. Operators must mark trails and known, hidden dangers, provide a ski patrol, and must not engage in any conduct that willfully of negligently contributes to injury of another person or the property of another. Id. at § 99C-2. Competitors are implied to assume the risk of course conditions that an inspection would have revealed, pursuant to § 99C-4. Ice rinks are subject to regulation as amusement devices under §§ 95-111.1 to 95-111.18. It may be worth noting that in 2003, North Carolina adopted an assumption of inherent risk statutory scheme covering “hazardous recreation,” including skateboarding, inline skating, and freestyle bicycling. §§ 99E-21 to -25.
Haltiwanger v. Phoenix Ski Corp., 723 S.E.2d 173 (N.C.App. 2012)Court of Appeals of North (2012)
At approximately 4:45 p.m. on Saturday, 13 February 2010, plaintiff was skiing at defendant’s resort when she collided with a snowboarder, Luis Venegas . Since 1985, plaintiff skied for one day almost every year, had never taken formal ski lessons, and considered her skill level intermediate. Although she and her family typically skied in North Carolina, she had never skied at defendant’s ski resort prior to the accident. As a result of the accident, plaintiff sustained injuries requiring medical care and treatment.
Venegas was employed as a lift operator at defendant’s resort. One of the benefits defendant offered its employees was complimentary skiing when they were off duty. At the time of the accident, Venegas was off duty.
On 16 August 2010, plaintiff filed an amended complaint against defendant only and sought damages for defendant’s negligence. Plaintiff alleges defendant owed her a duty of protection and had a duty to train and supervise its employees. Defendant answered the complaint and alleged the affirmative defenses of contributory negligence and assumption of the risk, since plaintiff’s lift ticket included a specific warning and an assumption of risk notice as a condition of skiing at defendant’s resort. Defendant moved for summary judgment on 29 April 2011. On 27 May 2011, the trial court granted defendant’s motion for summary judgment. Plaintiff appealed.
Plaintiff argued that the trial court erred in granting summary judgment to defendant because there was a genuine issue of material fact as to whether defendant was liable for Venegas’s acts under a theory of respondeat superior. Plaintiff’s forecasted evidence showed that although Venegas had been working for defendant on the day of the accident, he had completely finished performing his duties for the day when the accident occurred. While defendant had a policy allowing its employees to ski on the premises from Sunday-Friday (non-holidays) and nights, its employees were not required to utilize this policy. At the time of the accident, Venegas was off duty, not required to be on defendant’s premises, and not under defendant’s control. When he was skiing under these circumstances, his status was the same as any other individual enjoying the use of the slopes.
Furthermore, plaintiff has not provided any evidence to show how Venegas’s actions could be considered in furtherance of defendant’s business. Venegas was a ski lift operator. Skiing was neither required nor necessary as part of his job. There is no evidence that Venegas’s recreational snowboarding, after he had completed his shift, furthered defendant’s business in any way. Affirmed.
Prior to 2006
The court in Strawbridge v. Sugar Mountain Resort, Inc., 320 F.Supp.2d 425 (W.D.N.C. 2004) refused to enforce an exculpatory clause contained on an injured skier’s lift ticket that was claimed to have contracted away the operator’s negligence; Strawbridge was injured when he encountered a bare spot that operator had failed to mark, in violation of a statutory duty. In deciding motions to dismiss, the court a month later declared that in North Carolina, the doctrine of assumption of risk is based upon actual knowledge or a fair and reasonable opportunity to know, and usually this knowledge and opportunity must come in time to be of use. Strawbridge v. Sugar Mountain Resort, Inc., 328 F.Supp.2d 610 (W.D.N.C. 2004). The Strawbridgedecisions may be factually distinguishable from other potential failure to warn cases, as the court observed only five years earlier in an unpublished case that: “if the law were to be read to require the posting of signs before every grassy spot on a ski slope, Sugar Mountain would more resemble a giant slalom course than a recreational ski resort.” Poole v. Sugar Mountain Resort, Inc., 1999 WL 33321102 (W.D.N.C.)