Skiing collision in Utah where the collision was caused by one skier falling down in front of the other skierPosted: February 29, 2016 Filed under: Skier v. Skier, Skiing / Snow Boarding, Utah, Youth Camps | Tags: Collision, Downhill Skier, skier collision, skier v. skier, Uphill Skier, Utah Leave a comment
Is that a collision, an obstacle, a reason for a lawsuit? Skiers fall all the time.
Ricci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745
State: Utah, Court of Appeals of Utah
Plaintiff: Gary Ricci
Defendant: Charles Schoultz, M.D.
Plaintiff Claims: Negligence
Defendant Defenses: no negligence
Holding: for the defendant
Sometimes you stumble across a case that catches your eye from the way the facts are described by the court. This is one of them.
The two skiers were advanced skiers skiing on an easy run. Both were skiing under control. The defendant was part of a ski school class. The defendant was taking small easy turns as part of his class. Just as he was being passed by the plaintiff, he reached the top of a crest and slowed down, lost control and fell into the path of the plaintiff.
The two collided and slid into a tree at a high rate of speed. The plaintiff hit the tree suffering injuries. The defendant was able to ski away on his own.
At trial, the plaintiff argued that the defendant was negligent because he fell on an easy run.
At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, there was no possible reason for Schoultz to have fallen except for his own negligence.
The jury found the defendant was negligent and returned a verdict in favor of the plaintiff. The trial judge then granted the defendant’s j.n.o.v. (judgment notwithstanding the verdict). This was based on the court’s opinion that there was no negligence on the part of the defendant. “There was a duty not to be negligent. However, there was no negligence on the part of the defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial.”
A JNOV is a fantasy. They never occur because as long as there is some evidence of negligence and a decision by the jury a trial judge is not going to overturn a jury verdict. To overturn a judgment by a jury the trial judge:
…[is] justified in granting a j.n.o.v. only if, after looking at the evidence and all of its reasonable inferences in a light most favorable to [the nonmoving party], the trial court concludes that there [is] no competent evidence to support a verdict in [the nonmoving party’s] favor.
Consequently, the burden to grant a JNOV and overturn the jury’s verdict is very high and never done.
The appellate court has the same standard in reviewing a JNOV granted by the trial court.
“On appeal, we apply the same standard. In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts and evidence that tend to disprove its case. Thus, if we determine that there was competent evidence supporting the jury’s verdict, we must reverse the trial court’s grant of the j.n.o.v.
The plaintiff appealed the JNOV which granted a judgment for the defendant.
Analysis: making sense of the law based on these facts.
The appellate court looked at other collision cases were the cases rested on whether or not the defendant was negligent. Something was required to support the idea that the plaintiff was negligent in those cases that had found negligence, such as the defendant drinking a large quantity of alcohol.
The court found several cases where collisions on the slopes had occurred, but the defendant was found not to be liable because there was no evidence of negligence on the part of the defendant.
…the Tenth Circuit Court of Appeals affirmed the trial court’s ruling that the plaintiff could not recover from defendant for injuries sustained in a mid-mountain ski collision. Similar to the case at bar, the defendant was skiing behind the plaintiff and failed to alert plaintiff of his presence before they collided. The LaVine court specifically rejected the appellant’s claim of negligence: “Appellant contends that the collision itself conclusively establishes the defendant’s negligence and the plaintiff’s right to recover. We disagree.”
In another decision the court reviewed, there was the same statement that care was owed by the defendant. The defendant is not the insurer of the plaintiff and not responsible for everything that happens to a skier on the slopes.
The Dillworth court stated some collisions between skiers may be as a result of the obvious and necessary risks inherent in skiing, and accidents might occur despite the exercise of ordinary and reasonable care and without negligence by either skier. . . . Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. . . . Thus . . . skiers who lose control even while exercising due care–that is, have breached no duty owed to other skiers–may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing.
The court found that falling down on the slope is not proof of negligence. Without something to indicate that the defendant was negligent, a plaintiff cannot recover.
In sum, a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty. We conclude, after a careful review of the trial record, that Ricci failed to introduce any competent evidence that Schoultz was skiing negligently before his sudden and unexpected fall in front of Ricci. Ricci himself testified about the conditions and events just before the accident, noting that up to one second before the collision, Schoultz was skiing in control.
Ricci’s evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently.
The appellate court upheld the trial court’s granting of the JNOV and did not look at the other issues raised by the plaintiff on appeal.
There was a dissent in the opinion that argued there was enough evidence based on his analysis of the facts to support the jury finding. However, the facts presented were circumstantial based on the dissenting judge’s review of the evidence.
So Now What?
This was a rare case. There seems to be an assumption in all ski collision cases that if two people are on a slope together, and they collide with one person must have been negligent. This decision and the two other decisions the court pointed out show that is not the case. Not every collision on a ski slope is a negligent act.
At the same time, this is fairly easy to see and understand the issues because the party causing the collision, even though the “downhill” skier was the party that probably generated the issues to start the collision.
However, falling down is not negligence on a ski slope, at least in Utah.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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