Tennessee has a Ski Statute that must be construed narrowly or if you don’t understand skiing, ignoredPosted: November 4, 2013
However, the court rules that if parent signs a release the parent cannot recover for the child’s injures, even though the child still can
Plaintiff: Jaren Albert, a minor bn/f Jarrod Albert, and Jarrod Albert
Defendant: Ober Gatlinburg, Inc., and Smoky Mountain Snow SPORT School, Inc.,
Plaintiff Claims: negligence
Defendant Defenses: Against Defendant Ski Area, Ober Gatlinburg Inc.: (1) Jaren Albert was guilty of negligence as a matter of law which bars recovery for her injuries; (2) Jaren’s claim is barred by the Tennessee Ski Area Safety and Liability Act (SASLA), T.C.A. § 68-114-101; and (3) Ober is not guilty of any negligence which proximately caused or contributed to Jaren’s accident and injuries.
Against the Ski School Smoky Mountain Snow Sport School, Inc.,: (1) his claims are solely derivative of the claims of Jaren Albert and that failure of her claims precludes any recovery by Jarrod Albert; and (2) that Jarrod Albert signed a valid release agreement contractually preventing him from bringing a claim against the ski operator.
Holding: For the defendants against the parent and for the child on all other motions.
The plaintiff was a 15-year-old girl who was skiing at the defendant’s ski area when she was injured. The day before she had skied at the ski area and taken a lesson from the defendant ski school. As the second day progressed, she started skiing more difficult runs and eventually lost control, sat down and was injured when her ski apparently hit her in the head.
A witness to the plaintiff’s accident testified “She was coming down; she slipped and started sliding on her butt; she tried to stop sideways; she started going head over heels for about 10 feet, then her ski came off, hit her in the head, and she was out.”
She sued the ski school and the ski area. The plaintiff hired an expert who testified that the defendant ski area:
…failed to use reasonable care in deciding to open the ski resort on the day of the accident, failed to close some slopes or warn of ultra hazardous conditions on the slope on which this accident occurred, and failed to designate the slope on which the accident occurred as ultra hazardous, ice-covered, and/or “black diamond,” thus breaching its duty to operate in conformity with the SASLA.
When slope conditions change from marginal to extra-hazardous in nature, Mr. Isham states it becomes the obligation and duty of the ski operator to post warnings at the top of each trail notifying skiers that the slopes have changed and that they demand extra caution and attention. Such warnings should have also been posted at the slope condition board at the base of the mountain to provide additional information to skiers.
Ice or bare spots on a ski slope are ultrahazardous?
Both defendants filed motions for summary judgment. The plaintiff filed a motion requesting oral arguments on the defendant’s motions for summary judgment, which was denied. The court then ruled on the defendants’ motions for summary judgment.
Summary of the case
Claims against the ski area
The court first looked at the claims and arguments against the defendant ski area. The ski area argued that the plaintiff should not have been on the black diamond ski slope, and that is what created her injury.
…was an inexperienced skier, yet she skied on a slope which she knew was designated as “most difficult” and rated as a “black diamond” slope; and she ignored the posted signs warning her that the slope she was preparing to ski on was not suited to her ability. Despite that knowledge, Ms. Albert skied down Mogul Ridge and suffered a fall. Defendant states that Ms. Albert was not skiing within the limits of her ability and she apparently failed to maintain control of her speed and course, resulting in her fall and injury.
The defendant ski area also argued that the Tennessee Ski Area and Liability Act (SASLA) barred the plaintiff’s suit because a skier assumed the risk and legal responsibility of skiing under the act. The court stated that the Tennessee Court of Appeals had reviewed the statute and held that the act did not protect the operators from their own negligence or provide them with blanket immunity.
The plaintiff’s then made a simple argument to which the court gave credence.
Plaintiffs state that Ober Gatlinburg owed a duty of reasonable care under the circumstances, in addition to their statutory duties, not to expose a skier to risks at the resort which were not an inherent risk of skiing.
Because there was a difference of opinion, a material fact to which the parties disagreed, summary judgment could not be granted to the ski area.
Claims against the ski school
The ski school’s major argument was the lesson ended the day before so the school could not be liable for injuries that occurred after the lesson ended. The school also argued that the school had no control over the actions against the plaintiff after the lesson ended.
The plaintiff countered by arguing the lesson was incomplete. The plaintiff argued the lesson was 5-10 minutes, and she learned to stop and to turn. The school argued the lesson was longer. (I find it hard to believe that a beginner could learn to snowplow and turn in 10 to 15 minutes.)
Here again the court found that because there was a disagreement as to whether or not the lesson was adequate the ski school would not be dismissed from the suit.
Release signed by the plaintiff, parent of the injured minor.
The plaintiff and father of the injured girl signed a release. There was no reference as to how or why the release was signed. It was put forth in the decision and is only one real paragraph.
Under Tennessee’s law the release would not work to stop a claim by a child. However, Tennessee’s law allowed a release signed by a parent to stop claims for the losses the parent suffered because of injuries to the child.
This court has previously found the release void as to Jaren Albert because it is well settled in Tennessee that a guardian may not waive the rights of an infant or an incompetent. However, the Tennessee courts have held that a parent signing a release like the one at issue here, is precluded from recovering for the loss of services and medical expenses resulting from the child’s injury.
The court then stated:
He further agreed to indemnity defendants “for any claims brought by my minor child as a result of any injuries or damages sustained while engaging in the activity of snow skiing.” Therefore, the release is valid with respect to Jarrod Albert’s right to recover for loss of services and medical expenses for his child.
Whether or not the court is defining indemnification such that the defendants could recover for any losses is not clarified in the decision. Nor based on other Tennessee laws would I guess it was possible. However, courts do not throw around such legal terms carelessly.
Based on the release signed by the plaintiff the court stated:
… the Tennessee courts have held that a parent signing a release like the one at issue here, is precluded from recovering for the loss of services and medical expenses resulting from the child’s injury.
The defendant’s motions concerning the minor plaintiff were denied. The defendant’s motions concerning the claims of the plaintiff parent were granted. The case was continued for additional issues and probably trial on the claims of the minor.
So Now What?
The Tennessee Court of Appeal’s decision that this court relied upon gutted the Tennessee Ski Area and Liability Act (SASLA). If the act does not protect suits from the negligence of the ski area and the inherent risks of skiing are no enumerated, the act provides no benefit from suit. Most times a ski area statute provides a defense by saying that the skier assumes the risk, as defined by the statute. In this case, the risk to be assumed by the skier would have been hitting an icy patch or a bare spot. Without that protection of risks enumerated in a statute, the ski area can be held negligent for not warning of the ice or bare spot or not correcting the conditions within the area.
However, the SASLA has no list of risks that are assumed by a skier and only the blanket statement quoted by the court.
“Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing.”
Once a court decided the statute was to be narrowly construed and would not operate to prevent suits for negligence, there is little to zero value in the statute.
The decision about the very weak release is interesting. The court’s statements about the effect of the release lead to more interesting aspects of the case.
The rest of the case is going to be dependent upon the war of the experts. If the ski area and ski school could bring a credible expert to the witness stand to explain in ways, a jury could understand the ski area and ski school could win the case.
However, if the defendant’s credibility is blown at all, the outrageous claims of the plaintiff’s experts may hold water with a jury that does not understand skiing or Mother Nature.
What do you think? Leave a comment.
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss #Authorrank
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