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Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.

Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27

Doctrine of Assumption of the risk applies to the sport of skiing, unless the defendant was skiing recklessly, intentionally or unreasonably increased the risk of skiing.

Two friends were skiing together in New Hampshire at an unnamed resort. The defendant intermediate skier allegedly skied over the back of the plaintiff expert skier’s skis, after the plaintiff had passed the defendant. The plaintiff fell suffering injuries to her knees.

The lawsuit was in Rhode Island, but because the accident, the tort, occurred in New Hampshire, New Hampshire law was used by the Rhode Island court to determine the outcome of the case. The defendant had filed a motion for summary judgment, which was granted by the trial court and the plaintiff appealed that decision.

The issue the court based its decision on was Assumption of the Risk. The court identified three different definitions of assumption of the risk.

(1) that a plaintiff has given his or her express consent to relieve the defendant of an obligation to exercise care for his or her protection (such that plaintiff agrees to take his or her chances as to injury from a known or possible risk);
(2) that plaintiff has entered voluntarily into some relationship with the defendant which he or she knows involves the risk; or

(3) that plaintiff, aware of the risk created by the defendant’s negligence, proceeds voluntarily to encounter it.

In this case, the discussion of whether the risk assumed by the plaintiff was primary or secondary. Primary assumption of risk was defined by the court as:

When “plaintiff’s conduct in voluntarily encountering a known risk was reasonable,” then “the defense of assumption of the risk in its primary sense operates to deny the defendant’s negligence by denying the duty of care element of that offense; plaintiff does not recover because defendant’s conduct is not a legal wrong as to him

This is the basic long used definition of assumption of the risk or now primary assumption of the risk. The plaintiff knew and assumed the risk of the injury. Therefore, the plaintiff cannot recover.

Secondary assumption of the risk is based on the plaintiff’s conduct, not the plaintiff’s knowledge and assent. If the plaintiff places him or herself in a risky position the plaintiff assumes the risk. The best example of this is playing sports. You may not know all the ways you can be injured playing softball. However, you assume those risks by playing. The court in this case defined it as:

But if plaintiff’s conduct was unreasonable, the defense of assumption of risk in its secondary sense operates to bar his [or her] recovery for two reasons – – because he [or she] implicitly consented to accept the risk, and on the policy grounds that it would be inappropriate to impose on the defendant a loss for which plaintiff’s own negligence was in part responsible.”

This definition came from the Restatement (Second) of Torts § 496A, comment c(4) (1965)).
The New Hampshire Supreme Court defines primary assumption of the risk:

…when a plaintiff voluntarily and reasonably enters into some relationship with a defendant, which the plaintiff reasonably knows involves certain obvious risks, such that a defendant has no duty to protect the plaintiff against the injury caused by those risks. quoting Werne v. Executive Women’s Golf Assoc., 158 N.H. 373, 969 A.2d 346, 348 (N.H. 2009)

Perhaps a better way to understand this is, if the defendant does not owe the plaintiff a duty, because they are engaged in a sport or recreational activity, then the plaintiff’s action cannot give rise to liability on the part of the defendant. However, the defendant can be liable if the defendant acts outside of the normal scope of the sport or activity to substantially increase the risks of the sport or activity to the plaintiff.

Another softball example would be it is a normal risk of the activity in the softball league for first baseman to have their foot stepped on by the runner. Cleats are not allowed in the game. The runner steps on the first baseman’s foot causing injury because the runner was wearing cleats. Because the runner increased the risk of the sport, the plaintiff, first baseman could not assume the risk.

Here thought the defendant did nothing to increase the risks of the sport of skiing. The defendant was not skiing recklessly. The defendant had a duty not to act in a “manner that would unreasonably increase those inherent risks.” As such the plaintiff’s claims were barred by the legal doctrine of primary assumption of the risk.

So?

Here the court held that skiing has risks in the sport and one of those risks is a collision between skiers on the slopes. Unless one skier has increased the risk by skiing recklessly acting in an unreasonable manner or acting intentionally towards the other skier, the injured skier assumes the risks of a collision. As the court stated in summing up the case:

Plaintiff Fontaine does not allege that Defendant Boyd was skiing recklessly, intentionally ran over the back of her skies, or that she in any other way unreasonably increased the risk, inherent in skiing, that the two of them might collide.

In most states, this is the standard of care, not the “skier responsibility code” which is basically a public service announcement that is different every time it is reposted or used.

So Now What?

Ski areas need to get out of the let’s start lawsuit business between their customers. Every time two skiers/boarders collide, there is a threat of a suit now days. Ski areas believe they are not involved, but they are.

· Ski areas receive subpoenas to find documents related to the incident. This takes time and costs money.
· Ski area employees who were involved in the incident are subpoenaed to testify at depositions.
· Attorneys are sent to the deposition with the ski area employees.
· Ski area employees who were involved in the incident are subpoenaed to testify at trial.
· Attorneys are sometimes sent to the trials with the ski area employees.

If two ski patrollers were involved in a collision which ends up in a suit the cost to the ski area can be substantial. If the patrollers are paid $20 per hour let’s look at the cost to the resort.

1 hour to find, copy and mail the relevant documents $20
2 hours per patroller deposition prep with the ski area attorney $80
8 hours Drive to and from and attend deposition per patroller $320
4 hours Trial prep with attorney for the parties per patroller $160
16 hours Drive to and attend 5 day trial per patroller $640
Total cost to ski area for the lost time of patrollers $1220.00

These costs do not take into account the attorney time

2 hours Review file to understand the issues $800
4 hours Patroller prep $1600
16 hours Deposition with patrollers $6400
Total attorney cost $8800.00

At this point, the ski area has more than $10,000 invested in a skier/skier collision lawsuit. And the ski area is not a party to the suit. This does not cover the cost of covering for the ski patrollers if they are gone during the ski season.

1. Inform guests that collisions occur, and they assume the risk of a collision.
2. Have the ski patrol take care of the victims and not become involved in dealing with skier v. skier issues.
3. Make sure the standard of care for determining liability in a skier v. skier collision is reckless or intentional, not a mere violation of some public service announcement.

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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