Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the riskPosted: January 16, 2012
The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.
This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)
Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”
The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.
In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.
The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.
The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:
N.J.S.A. § 5:13-4. Duties of skiers
(4) Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.
The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”
If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.
The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.
Do any of those issues rise to the level that they are reckless?
In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:
….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)
Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)
A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)
…done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)
…recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500
Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:
· failed to keep a proper lookout
· made a panic stop
· turned to his left in front of decedent
In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.
The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.
1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.
2. It was created as a guideline, not a standard of care.
3. Only Montana has incorporated the code in its statute.
So Now What?
My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.
Every lawsuit based ski area land; the ski area is going to have to do things that cost money.
1. Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.
2. Employees will be deposed and attend trial; the resort is going to have to pay them to attend.
3. When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.
These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.
This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.
From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.
From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.
The industry needs to:
· Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.
· Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.
· Define the Skier Responsibility Code as help, not the standard of care.
What do you think? Leave a comment.
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