Plaintiff tries to hold ski area liable for exceeding the state ski statute, however the court sees the flaws in the argument.Posted: January 20, 2014
The New Hampshire Ski Area Safety Act only requires a ski area to post as a sign to close a run. The plaintiff tried to claim that a rope closing the run created greater liability rather more protection for skiers and boarders. A voluntarily assumed duty negligently performed is something always created in many outdoor recreation programs or businesses. However, it is not the change that is the legal issue. It is whether or not you increased the risk of harm to your guests that is controlling.
Plaintiff: Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do
Defendant: Loon Mountain Corporation, d/b/a Loon Mountain Ski Area
Plaintiff Claims: violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Defendant Defenses: New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Holding: for the defendant ski area
In this case, two people died and one person was injured on an icy ski slope. The first victim standing above the closed trail slipped and slid under the rope 900 feet to his death. The next two victims took off their skis and tried to hike down to the first victim. Both eventually fell sliding down the slope.
The survivors and the estates sued claiming violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act and common law negligence claims. The lower court dismissed all but two of the claims on the defendant’s motion to dismiss. Those two claims were eventually dismissed after discovery had occurred, and the defendant filed a motion for summary judgment.
The plaintiff’s appealed the dismissal.
Summary of the case
The trail the plaintiff’s fell down had been closed because it was icy. The New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act required that a notice be placed on signs at the base of the lift, on trail-boards, and a sign posted at designated access points.
The plaintiff argued that the trail had to be closed not only at the main access point to the trail, but all possible access points to the closed trail from other trail. The court looked at a trail map of the area and realized that the signage alone to mark a trail closed would be enormous.
The second argument was the most disturbing. The statute did not require that a rope be used to close a trail. Only a sign was needed to close a trail. By placing the rope across the trail the rope “could lure a skier closer to the icy entrance than one would go otherwise.” The plaintiff then argued that by a duty, voluntarily assumed but negligently performed was not protected by the ski statute.
There are situations where a voluntary act increases the risk of harm to someone creating negligence.
…but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care.
The district court rejected this argument.
[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.
Because the first person to fall slipped on an ice patch, which was an inherent risk assumed by the skier under the statute, the plaintiff could not argue the risk was increased. The risk was there, and the rope did not change or increase the risk.
The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.
The next two plaintiffs obviously assumed the risk and by taking off their skis, probably increased the risks themselves.
The remaining claims of the plaintiff were dealt with quickly. The first was the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act violated the New Hampshire Constitution. However, the New Hampshire Supreme Court had already ruled it did not. The final two were procedural in nature. Whether the question on appeal had been certified and whether the plaintiff’s request to amend their complaint had been improperly denied.
So Now What?
Cases like this scare outdoor recreation programs into not doing the next thing to make a program better because of fear of creating more problems. Do not allow the threat of a lawsuit from making your program better or safer.
Do make your changes or upgrades such that the changes do not place your guests in a place of increased risk or such that you have placed your guests in a position where they may be confused.
Any risk can be assumed by your guests, clients or skiers. You need to make sure that any changes in your program, operation or business results in a change in the information and education your clients receive about the risk.
Here the risk had not changed to the plaintiff so that the change, the actions above those required by the statute, did not increase the risk to the plaintiff’s. The icy spot was there whether or not the rope was placed closing the trail or where the rope was placed.
Do the right thing and continue with an education of your guests to make sure they know what you are doing and why and what those risks are.
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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