Skier claims resort liable for boundary rope, in place to prevent collisions, which she collided with…..Posted: January 23, 2012
Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see
The plaintiff in this case suffered a broken back, ribs, hip and pelvis after hitting a rope used to direct traffic at Taos Ski Valley, Inc (referred to as TSV by the court). The plaintiff was an experienced skier, and the rope had been in place for twelve years.
The plaintiff sued for:
…failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles; TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages; TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary; and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV….
Taos moved to dismiss three of the claims with a motion based on a failure to state a claim. That is a motion that argues based on the allegations of the plaintiff’s complaint, there is no legal liability on the part of the defendants. The plaintiff has failed to state a legal claim that the defendant can be held liable for. Two of those claims were dismissed.
The ski area then filed a motion for summary judgment, which dismissed the remaining claims of the plaintiff based on the New Mexico Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq.
The plaintiff appealed the dismissal of her case. The first basis of her appeal was based on the NM Ski Safety Act. The act provides that:
…every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so….
She argued that the installation of the rope created a hazard which the ski area did not warn her about.
The court agreed with the ski area and held that even if the rope was a hazard, it was not feasible to correct the hazard and thus, under the statute, not a hazard the ski area needed to warn the plaintiff about.
The plaintiff then argued the ski area breached its duty because it did not mark its trails with the appropriate signage.
Section 24-15-7(C) provides:
Every ski operator shall have the following duties with respect to the operation of a skiing area:
* * *
to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .
The plaintiff’s expert witness opined that three ropes would be better and easier to see. However, the court found the expert’s opinion to be speculation and not persuasive. (Personally, three ropes create a real barrier. Think skiing into a fence rather than one line.)
The plaintiff’s next argument procedural in nature. Normally, I leave procedural issues out of this reviews, however this one might be good to know. The plaintiff wanted to depose the resort’s Chief Groomer and the Assistant head of the Ski Patrol. The resort filed a motion for a protective order which prevented the plaintiff from deposing these employees.
The appellate court held that since one of the senior employees of the resort was the responsible person, to who both subordinate employees ultimately reported, there was no need to depose the two employees. The Ski Area General Manager testified that he had the ultimate responsibility for marking the resort, which was enough for the court to prevent additional discovery.
The final issue not covered by the New Mexico Ski Safety Act is the plaintiff’s claim that based on the Special Use Permit issued by the US Forest Service to the ski area, she was a third party beneficiary, and permit/contract was breached.
This argument was rejected because the language of the New Mexico Ski Safety Act language indicated that the provisions within the act were to be the only remedy available to injured skiers.
The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].
As the sole remedy, the arguments of the plaintiff did not give rise to a claim.
So Now What?
This is a classic “damned if you do and damned if you don’t” situation for a defendant. If you don’t put up the rope, skiers are going to collide, causing injuries. If you do put up the rope, a skier may hit the rope. This is the balance test that a business must do in the US. To quote a sixties TV show turned into a 1980’s movie “In any case, were I to invoke logic, logic clearly dictates that the needs of the many outweigh the needs of the few.”
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