Ski Area and Retail shop litigate who pays for guest accident at ski area.

Upky v. Marshall Mountain, LLC, 2008 MT 90; 342 Mont. 273; 180 P.3d 651; 2008 Mont. LEXIS 94 (Montana 2008)

This case is simple on its face, although difficult in the legal procedural issues that decision reviews. A snowboard retail shop in conjunction with the ski area built jumps for snowboard competitions on the mountain. The shop and the mountain did not have any written agreement to determine liability, control or any aspect of the event or building a jump.

A guest of the ski area went off the jump, which was open, prior to the competition breaking his neck resulting in him being a paraplegic.

The facts fall on each side of the argument. Was the jump complete or still under construction. Was the jump closed by the shop after it was built or not. Did the ski area open the jump. Did the plaintiff enter the jump controlled or out of control. Eventually, these facts did not matter. A land owner is ultimately responsible for what happens on its land.

The injured guest sued the ski area. The ski area brought in the retail shop as a third party defendant. A third party defendant is one that the plaintiff does not know about but who the original defendant believes shares or has 100% of the liability of the plaintiff.

The ski area and the plaintiff settled their lawsuit. The plaintiff was dismissed and the lawsuit continued between the ski area and the shop. A jury trial was held, and the jury found the shop was not negligent. The ski area appealed the decision. The appellate court upheld the jury decision.

So?

1. As we know, injuries that generate loss of earnings and major medical bills are always going to generate litigation. There is too much money at stake for the lawyers not to give it a try and needed by the families. Medical bills, future medical bills and the care necessary for a paraplegic are regularly in excess of $3 M and usually close to $5 million. Lost earnings for a teenager will be based on his working from post college to retirement at age 65, and that will be another $5 M to $10 million. Add to that any pain and suffering, parental pain and suffering, etc. and you can see where the real damages can be close to $30 million.

2. When someone can get hurt, the agreement between the parties needs to be specific on who will protect who and who will be responsible for what. Here there was nothing but discussion about putting on an event. When a third party comes on to your land and changes your land you need a written agreement stating that person is liable for the changes. If not, you are liable.

3. If you are the landowner, you are the ultimate person responsible for what happens on your land. As such, you need to be in control of what happens on your land and what third parties do on your land. No matter what the shop owner did, it is solely the responsibility of the land owner, the ski area to open or close the jump.

4. A decision by a jury, the verdict is rarely over turned by a higher court. In order to overturn the jury verdict either the court must find the jury did not understand, totally missed the evidence or allowed emotion, not the facts to control their decision.

This decision occurred in Montana, which is one of the states, which does not allow the use of a release. See States that do not Support the Use of a Release. Consequently, any injury in Montana is going to be defended solely on the defense of assumption of the risk, whether the plaintiff caused their injuries.
What should the two parties have done? They should have an agreement. In exchange for building the jump and running or putting on the event the shop would get sponsorship. The parties should have decided who was going to be liable and the liable party should have indemnified the other party. The indemnification should have been backed up by a certificate of insurance from the indemnifier’s insurance company. The certificate of insurance should have been verified with the insurance company by calling and making sure it was a real policy and in force.

The agreement should have concluded with a mandatory arbitration clause which would have required the parties to arbitrate rather than litigate. The cost of a trial would have been substantially reduced and arbitration results in the parties possibly leaving the field of battle as survivors rather than a victor and the vanquished and defeated.

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