Skier/Boarder Fatalities 2011-2012 Ski Season
Posted: January 11, 2012 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Fatalities, Ski Resort, skiing, Sports, Terrain park, United States, winter sports Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
If this information is incorrect or incomplete please let me know. Thanks.
|
# |
Date |
Resort |
Run |
Run Difficulty |
Age |
Skier Ability |
Ski/ Tele /Boarder |
Cause of Death |
Helmet |
Reference |
|
1 |
11/18 |
Vail |
Gitalong Road |
Beginner |
62 |
Skier |
Yes |
|||
|
2 |
11/18 |
Breckenridge |
Northstar |
Intermediate |
19 |
Expert |
Boarder |
suffered massive internal injuries |
Yes |
|
|
3 |
11/27 |
Mountain High ski resort |
Chisolm trail |
Beginner |
23 |
Beginner |
Boarder |
internal injuries |
Yes |
|
|
4 |
12/18 |
Sugar Bowl |
Chair Lift |
|
7 |
Expert |
Skier |
fell off chair lift |
|
|
| 5 | 1/4 | Ski Ward | Chair Lift | 19 | Expert | Skier | fell of chair lift | http://rec-law.us/y3sOtx |
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Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.
Posted: January 9, 2012 Filed under: Jurisdiction and Venue (Forum Selection), Massachusetts, Skiing / Snow Boarding | Tags: Due Process, Lawsuit, Litigation, Long-Arm Jurisdiction, Massachusetts, Motion (legal), Plaintiff, Product liability, Salomon North America, Ski binding, Summary judgment Leave a commentLafond v. Salomon North America Inc. et al, Superior Court County of Suffolk, Commonwealth of Massachusetts.
Although not a Precedent setting decision, it is indicative of where the courts are going.
This is a decision in the trial court of Massachusetts over ski bindings. The bindings broke injuring the plaintiff while he was skiing in Utah. He sued Salomon in the US and Salomon SAS, the French parent company based on Annecy France. The retailer, Bob Smith’s Wilderness House was brought in as a third party defendant.
The defendants filed a Motion to Dismiss, or what is referred to as a Rule 12(b)(2) motion. A Motion to Dismiss is granted only if the pleadings of the plaintiff do not state a legal claim or the defendant can’t be sued in this case. No evidence is reviewed by the court; it is purely a simple legal argument based on the laws of procedure.
Salomon SAS argued that it had no business in France, did no business in any country other than with Salomon North America based in Ogden Utah. Therefore, because it did no business in Massachusetts, it should not be brought into the litigation in Massachusetts.
So?
Image via Wikipedia
The plaintiff claimed it went to the Salomon SAS website to research different bindings. The Salomon SAS website directed the plaintiff to the third party defendant Bob Smith’s Wilderness House as a retailer the plaintiff could from whom he could purchase the bindings.
The broken bindings were replaced by Salomon, although it is not known in the motion if it was Salmon SAS or Salomon North America.
The issue is whether court has the legal right to require a defendant to submit to its jurisdiction. The limits or requirements the court must follow are set usually set out in a long-arm statute. That is the name given to the statute that controls whether the long arm of the law can extend outside of the state.
To exercise out of state jurisdiction over a defendant located in another state or country the defendant must have engaged in “purposeful and successful solicitation of business from Massachusetts residents.”
A website alone is not enough to bring a foreign or out of court defendant into the jurisdiction of a Massachusetts court. However, because the plaintiff identified the store where he purchased the bindings based on his actions on the Salomon SAS website that was enough to subject the foreign defendant to the jurisdiction of the Massachusetts court.
There are numerous other tests the court must review to subject a foreign business the jurisdiction of the court. However, this one act of directing the plaintiff to a local retailer was enough to subject the defendant to the jurisdiction of the Massachusetts court.
So Now What?
This is a crap decision. When a website brings you into court, a website alone, the purpose of long arm statutes has faded considerably.
However, this is just the first step in a long line of steps before the case is decided. Rarely is a Rule 12(b)(2) motion granted. Motions for Summary Judgment, other defense motions and a trial are all next, then appeals. Hopefully, an appellate court will look at this say the original decision must be overturned.
What can you do? In this case, maybe not a lot can be done, but there are something’s that might assist in some circumstances.
In every sale or contract, put into the agreement a jurisdiction and indemnification clause. You can use them in retail sales agreements with consumers, to some extent.
You also might consider an indemnification agreement between your US based distributor and yourself if you are a foreign, non US based, manufacture. The agreement would say that you would be 100% indemnified for any US based lawsuits, other than product recalls. This might encourage US plaintiff’s not to drag you into a US court.
Make sure your agreement with your US based distributor is not a big target for lawsuits. Identify when the inventory transfers to the US subsidiary and when payment is owed for the inventory.
Set up a defense program with your US Distributor, Reps and all retailers. The program should incorporate the use of a release. The program should make sure three things happen to help eliminate several of the issues in this case.
1. It requires the use of a release by all parties at all times. You can even put one on your website. Releases are not 100% effective in product liability cases, but their jurisdiction and venue clauses may at least get the suit back to your home state.
2. The agreement identifies who shall be protected who and for what reasons. The manufacture of a product in a product liability claim is going to be holding the bag in most cases so this is not a big deal. More importantly it keeps the retailer in your camp in litigation and prevents the embarrassment of brining in the retailer as a third party defendant, making them mad and making you look bad, that occurred in this case.
3. It requires the retailer to notify you immediately of any problems so you can get ahead of the curve.
4. It puts you in control of your litigation destiny and makes you look like the good guy when you are sued to all distributors and retailers in the industry.
For more cases on Jurisdiction and Venue see:
The legal relationship created between manufactures and US consumers
Four releases signed and all of them thrown out because they lacked one simple sentence!
What do you think? Leave a comment.
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Vail installing new Gondolas for the 50th Anniversary with WiFi
Posted: January 7, 2012 Filed under: Ski Area | Tags: Adventure travel, Chair Lift, Gondola, ski area, Ski Resort, Vail Leave a commentLoading other lifts with backpack and laptop should get exciting…..
Vail has announced it will be replacing the Vista Bahn Express Lift (#16) in Vail Village with a new gondola. Lift capacity will be increased by 40%.
The new gondola still needs approval from the Town of Vail and from the USFS, however I don’t expect that to be a problem.
Wow.
What do you think? Leave a comment.
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Pre-Season Ski & Snowboard Checklist
Posted: December 27, 2011 Filed under: Skiing / Snow Boarding | Tags: base, edges, Pre-season, ski season, tune up, tuning, winter sports 1 Comment|
Pre-Season Checklist: Gloves/Mittens – Jackets/Pants – Travel/Pass/Lesson Discounts – Helmet – Goggles – Think Snow!
|
Colorado Avalanche Information Center
Posted: December 24, 2011 Filed under: Avalanche, Skiing / Snow Boarding | Tags: avalanche, backcountry, CAIC, Colorado, Colorado Avalanche Information Center, Ethan Greene, Financier, Friends of CAIC, Geological Survey, reports, snow reports, Twitter Leave a commentWant the best snow reports for this winter season: Become a member of CAIC, the reports are free, but it’s cheap to find out where the real powder, not what some resort says! Join and maybe save your life.
Starting this season, we will no longer require a donation to receive forecasts via email. From now on you can get all of our mountain weather and avalanche products on the web, phone line via Twitter, or email for free. We have wanted to make this change for quite some time. It is a financial gamble for us, but we feel it is the right thing to do. Avalanche safety information should be free and readily available to everyone that needs it.
This change, and all the new features for the 2011-2012 season will move to our live website next week. This is later than we would like, but testing the features has taken longer than we expect. As a result, many of you received a renewal notice this week. I am sorry that this message went out and for the confusion it caused. We have extended everyone’s subscriptions, so you will keep getting the emails you were signed up for last season. By Thanksgiving everyone will be able to sign up for a free account so they can send us observations and get forecasts via email.
We still need your financial support. Although our funding appears to be stable, these are hard times for everyone and no one knows the future of any government program. Backcountry use in our state increases every year and we are constantly trying to provide a better service. Please support the Friends of the CAIC through one of their events, make a donation through their website or donate directly to the CAIC through the Geological Survey’s website. You can always send comments, suggestions and donations to:
CAIC
325 Broadway WS1
Boulder, CO 80305
caic@qwestoffice.net
Thank you for all of your support in the past and I hope the services we provide continue to deserve your support now and in the future.
Ethan Greene
Director, CAIC
=
G3 Skigraphiks Contest ending 12/31/11
Posted: December 23, 2011 Filed under: Skiing / Snow Boarding | Tags: G3, Genuine Guide Gear, Graphics Leave a commentEnter now to design the top sheet of a set of G3 skis!
Last Chance to Enter G3 Skigraphiks Contest
We’re in the 4th and final round of G3’s Skigraphiks Contest, let your creativity flow and get your entries in before Dec 31, or better yet, enter this week before the eggnog blurrs your design skills! View the most recent entries for inspiration, then concoct your own or voice your opinion on the current entries.
Winner takes home their own custom G3 & Backcountry Magazine limited
What do you think? Leave a comment.
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I won’t tell you how to run your life, you don’t tell me how to run my ski area!
Posted: December 21, 2011 Filed under: Ski Area | Tags: Jim Moss, Recreation, Recreation Law, Recreation-Law.com, Rock climbing, Ropes course, Ski Resort Leave a commentAn article Should Ski Areas Expand When Skier Numbers Are Flat? Raises some interesting questions. However I’m not sure those are questions the public should be asking.
The Ski Area Citizens’ Coalition is saying that ski areas should not be expanding their terrain when the number of skiers is not growing. Basically the Ski Area Citizens’ Coalition is grading ski areas on their environmental footprint and expansion is a negative aspect of their score card. They are then tying its grade to the lack of growth in the number of skiers coming to resorts.
Resorts who receive a good grade are happy with it and resorts who receive a bad grade found fault with the grading system. I had the same response all throughout my formal education.
Grading anyone on its sustainability, its environmental concerns are great. I try and check those issues when I deal or make a purchase from some companies. However tying it into an economic issue, when most resorts are making money is a little lame.
This is different from the National Ski Area Association’sSustainable Slopes Program which grades ski areas on their environmental score card.
What do you think? Leave a comment.
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Great article on why helmet laws are stupid
Posted: December 14, 2011 Filed under: Skiing / Snow Boarding | Tags: Helmets, legislation, skiing, statute Leave a commentEither that or we should be wearing helmets at dinner.
Yes I know I write a lot about helmets. However the most important issue I write about is to make people think about what they do and why. In this case you are not solving any problems and you are creating greater liability issues.
The article was written because a new law in Nova Scotia requires skiers and riders to wear helmets. The law carries a $250 fine. On top of that, there “will, indeed, be helmet cops on the slopes. The minimum fine is $250.”
The head injury rate is pretty low. “…since 2000, 11 helmetless skiers and snowboarders have suffered such an injury on the slopes of Nova Scotia.” That is one head injury per year in Nova Scotia from head injuries.
Simply put the article looks at the risks of a head injury in Nova Scotia from skiing based on the injury stats of Canada.
In 2003-04, one in 4,100 Canadians was admitted to hospital for head trauma suffered in a fall, and one in 5,300 for head trauma suffered in a car accident. Bill 131 proposes to offset, by 60%, a risk of roughly one in the population of Nova Scotia, which is 945,000.
If you want to stop head injuries, you would legislate wearing a helmet while driving. That would prevent more head injuries.
The articles intent is to point out there is no logical basis in the way laws are created. Instead of asking “why” they need a new law, legislators are asking “why not.”
Or as I say, what can I do, no matter how stupid, that will put me on the front page of a newspaper to help me get reelected.
It’s a great article. See Why not enact pointless ski helmet law?
What do you think? Leave a comment.
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Vail and USFS in disagreement over “ownership” of Forest Service water rights.
Posted: December 13, 2011 Filed under: Ski Area | Tags: snowmaking, Water Rights Leave a commentRights were acquired from the USFS because of the ski area permit.
The argument is pretty simple. The ski area claims their own the water rights. The USFS argues the water rights are part of the ski area and the long term sustainability of the ski area is tied to the water rights.
To read about the discussion see: Vail, Uncle Sam Coming to Blows Over H2Os and Water war between ski resorts and Forest Service boils over. The ski area position on the issue can be found here: http://rec-law.us/sJewr6
I wonder what this means for the permit to operate the ski area next time it renews?
What do you think? Leave a comment.
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New Snow Groover, ecofriendly starting production
Posted: December 8, 2011 Filed under: Skiing / Snow Boarding | Tags: eco groomer, grooming, ski area, snow grooming Leave a commentThis should gently shake up the ski grooming industry!
The Denver CO, based company Eco-Groomer has started production on 60 of its new eco-groomers. Components are going to be manufactured by several different companies and final construction will be done someplace in the Midwest. The actual unit is not a complete snow groomer but outrigger units that can groom the snow on their own and can be attached to what appears to be most groomers.
The eco-part of the groomer is from the terrain the groomer is able to cover. The Eco-groomer has two outriggers that will increase the terrain groomed by what appears to be almost 200%. This increase in terrain coverage by one groomer translates into a fuel savings of 35%.
What do you think? Leave a comment.
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Skier/Boarder Fatalities 2011-2012 Ski Season
Posted: December 7, 2011 Filed under: Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: Breckenridge, fatality, JimMoss, Mountain High Ski Resort, Outdoor recreation, Ski Resort, Skiing / Snow Boarding, snowboarding, Vail Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
If this information is incorrect or incomplete please let me know. Thanks.
| # | Date | Resort | Run | Run Difficulty | Age | Skier Ability | Ski/ Tele /Boarder | Cause of Death | Helmet | Reference |
| 1 | 11/18 | Vail | Gitalong Road | Beginner | 62 | Skier | Yes | http://rec-law.us/rBcn7A | ||
| 2 | 11/18 | Brecken-ridge | Northstar | Intermediate | 19 | Expert | Boarder | suffered massive internal injuries | Yes | http://rec-law.us/rBcn7A |
| 3 | 11/27 | Mountain High ski resort | Chisolm trail | Beginner | 23 | Beginner | Boarder | internal injuries | Yes | http://rec-law.us/uGuW17 |
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Smart Style Business Card
Posted: November 29, 2011 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Burton Snowboards, National Ski Area Association, NSAA, RespectSomeone, Skiing / Snow Boarding, Slopesyle, Smarstyle, SmartStyle Leave a commentGreat Idea, I want it to work
I picked up a Smart Style card that is business card size someplace. It has the Smart Style logos on one side so you can recognize the Smart Style signs.
Smart Style was developed by the National Ski Area Association and Burton Snowboards and is a great program. In fact, it is a program that has worked and teenagers know about it.
On the back is the Smart Style info:
· Make a Plan
· Look Before you Leap
· Easy Style It
· Respect gets Respect
Someone should be handing these out at the parks. You’ll probably pick up a lot of them at the end of the day on the slope, (they’ll fall out of pants hanging low) but if one more rider or skier catches the drift, someone may be hurt less.
I’m not saying go home, I’m saying getting hurt because you are dumb is stupid. (Great line!) Getting hurt because you know what you are doing and something does not work right is different than blasting over a jump and missing the landing or hitting another person.
What do you think? Leave a comment.
Copyright 2011 Recreation Law (303) 807 2275
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Forgetting your beacon is manslaughter in Europe….if you wife dies in an Avalanche
Posted: November 9, 2011 Filed under: Avalanche Leave a commentVerdict confuses everyone
In what many are calling a crazy decision, a man has been found guilty of manslaughter and sentenced to three months of prison, suspended for allowing his wife to ski without an avalanche beacon.
Both were experienced skiers, he more than her. He triggered a slab avalanche which buried he.
The slide occurred on a 35° slope the risk was given as Considerable (3/5). The lack of beacon seriously delayed finding the victim even when rescue services arrived on the scene. The 58 year old woman had suffered from serious head injuries after being buried over a meter in dense snow.
Because the woman was not wearing a beacon the rescue took a considerable amount of time.
The deicison has left many people very confused in Austria.
Michael Larcher, director of education of the Austrian Alpine Association has questioned the verdict. He points out that although the woman was less experienced than her husband they had been touring together for years, “she was no beginner but had enough personal knowledge to know to turn on her beacon. Given that the lack of beacon was the main reason for the verdict, in my opinion, you cannot put all the responsibility on the husband, it is an issue of personal responsibility”
Estolf Müller, representing the Austrian Mountain Rescue Service said that “judging who is experienced is legally very difficult, I’m really sceptical when the courts intervene in a private sport so long as innocent bystanders are not endangered. When you go into the backcountry everyone has to be responsible for themselves.”
So?
The man in this case may also be facing a civil suit by the family on top of losing his wife. Personally, I think this is a little extreme. However it points out the differences between the United States and Europe.
Most European countries are based on a criminal system to enforce the standards of care. If you do not take care of someone you face jail time.
In the US we rely on a civil litigation system. If you do not take care of someone you face a lawsuit. Only in extreme cases where your actions are so bad or intentional can you face losing your freedom in the US. I show it visually this way.
The Red Column is the amount of proof needed to convict in a Criminal Case. The Blue Column is the amount of proof needed to win a civil case.
The US is based on a system that personal freedom is important and society, not the government should decide when someone has injured another. In Europe, the government is in charge of deciding the wrongs and rights of all of society.
For articles about this see Another Litigation versus Criminal example and Litigation v. Jail Time.
To see the article go to 3 months suspended sentence for forgetting beacon
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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It’s Snowing! Register for the 2012 SIA Snow Show and On-Snow Demo
Posted: November 8, 2011 Filed under: Skiing / Snow Boarding Leave a comment
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“WAKE UP BRECK” JUMP STARTS THE 50th ANNIVERSARY SKI SEASON THURSDAY, NOVEMBER 10, 2011 AT BRECKENRIDGE COFFEE SHOPS
Posted: November 6, 2011 Filed under: Ski Area Leave a commentFree Coffee!
Breckenridge’s 50th Anniversary Season Starts 11/11/11
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Avalanche Center Newsletter #01
Posted: November 4, 2011 Filed under: Avalanche, Skiing / Snow Boarding Leave a comment
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The very first lawsuit against a ski area
Posted: October 24, 2011 Filed under: Ski Area, Skiing / Snow Boarding Leave a commentWright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Assumption of the Risk or the Doctrine of Volenti Non Fit Injuria as it was known then, won the case for the defendants.
In 1949, the plaintiff was on her second run, on the same run at Mt Mansfield ski resort in Vermont. She allegedly hit a stump hidden by the snow which caused her injuries. She sued the lift company and the land owners for her injuries.
The original defendants were Mt. Mansfield Lift, Inc., Mt. Mansfield Hotel, Inc. and the Stowe-Mansfield Association, Inc. The Stowe-Mansfield Association, Inc. was dismissed from the case because it did not own any land at the ski area. The Stowe-Mansfield Association Inc. owned and operated the lifts. The ski area crossed land owned by several different parties, the Mt. Mansfield Hotel, Inc. and Mt. Mansfield Lift, Inc. The accident occurred on land owned by one or both remaining defendants.
Summary of the case
The court looked at the legal issues of the case. As landowners, the remaining defendant’s duty to the plaintiff, an invitee, was “to advise them of any dangers which reasonable prudence would have seen and corrected.”
However, skiing is a sport and as such one assumes the ordinary risks of the sport, which in this case, include inequalities of the surface. This defense was known then as the doctrine of volenti non fit injuria. Today, we know the defense as assumption of the risk. “The plaintiff then was merely accepting a danger that inheres in the sport of skiing.”
So Now What?
Like the 75 cent lift tickets purchased by the plaintiff, the law and skiing have changed since 1951 when this case was decided.
However, it does point out a few simple issues.
Lawsuits for personal injuries in recreation have been around for sixty years.
Assumption of the risk is a good defense to claims based on the inherent risks of the sport.
What do you think? Leave a comment.
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Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Posted: October 24, 2011 Filed under: Legal Case, Ski Area, Vermont | Tags: Federal Supplement, Mansfield, Mount Mansfield, ski area, skiing, Skiing / Snow Boarding, United States, Vermont, Wright Leave a commentWright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Civ. A. No. 1101
United States District Court for the District of Vermont
96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
April 16, 1951
Counsel: [**1]
Justin G. Cavanaugh and William H. Cooney, Springfield, Mass., for plaintiffs Florine Wright and Robert B. Wright, Jr.
McNamara & Larrow, Burlington, Vt., Frank G. Sterritte, New York City, for defendants Mt. Mansfield Lift, Inc. and Mt. Mansfield Hotel, Inc.
Clifton G. Parker, Morrisville, Vt., for defendant Stowe-Mansfield Ass’n, Inc.
OPINION BY:
GIBSON
OPINION:
This is an action for damages resulting from a skiing accident brought by Florine and Robert B. Wright, Jr., husband and wife, of Springfield, Mass., against the Mt. Mansfield Lift, Inc., Mt. Mansfield Association, Inc. The case was heard on its merits at the February term, 1951, U.S. District Court, District of Vermont. At the conclusion of the plaintiff’s case, each of the three defendants filed a motion for a directed verdict. The motion, in each instance, is hereby granted.
The plaintiff, Mrs. Florine Wright, in her complaint, alleged that on January 23, 1949, she was skiing at the Mt. Mansfield ski area in Stowe, Vermont; that she had paid the required fee to one of the defendants, Mt. Mansfield Lift, Inc., hereinafter called Lift; had been transported to the top of Mt. Mansfield by this chair lift and [**2] having reached the top, started to ski down a marked trail; that on her way down the mountain, at a certain point on a ski trail, she ran against or collided with a snow-covered stump of a tree and thereby caused a serious fracture of her left leg.
The evidence viewed in the light most favorable to the plaintiff revealed the following situation. Stowe, Vermont, has become one of the largest winter sports areas of the eastern United States. The area of [*788] Mt. Mansfield is a snow bowl. In fact, the slogan of the area is ‘There is always snow in Stowe, you know’. Lift, Inc. was a Vermont corporation which owned or controlled land running up Mt. Mansfield on which it had erected a modern chair lift for skiers, the lift itself being better than a mile long.
In January, 1949, those who desired to ski down the trails of Mt. Mansfield in this area purchased a ticket at the bottom of the mountain where the lift commenced, the ticket costing 75 cents for a single ride up the mountain. After purchasing the ticket, the prospective skier stood in line and as the skier’s turn came, sat in the ski chair, generally with skis on. The skier was then hoisted better than 2,000 feet above the [**3] elevation of the bottom of the ski lift and deposited at the top of the ski lift at the top of Mt. Mansfield.
At the top of the ski lift, there was what is known as the Octogon House, made of stone, in which was served refreshments and also in which was a blackboard or chart on which were listed the particular trails which were open for skiing.
There were also located in this general area at the top of the lift signs pointing to the starting points of various trails down the mountain, each trail bearing a different name, such as Nosedive, Skimeister, Toll Road, etc. Most of these trails started on land that was owned or controlled by Lift, Inc. As these trails wended their way down Mt. Mansfield, they twisted their way, on occasion, onto lands owned or controlled by others. Defendant Mt. Mansfield Hotel, Inc., hereinafter called Hotel, Inc., at the time of the accident, owned and operated a hotel which at that time cared for approximately 20 guests. Most of these guests were ski enthusiasts. The Skimeister trail, as it came down Mt. Mansfield, came onto land of the Hotel, Inc. The Skimeister trail had been in operation for many years before this accident with the full knowledge and [**4] approval of Hotel, Inc. The trails were areas cleared down the rough mountain side of Mt. Mansfield by cutting trees, by bulldozing and by other methods. The trails are of varying width, some of trails being much more crooked than others.
The maintenance of the trails in the summertime consisted of mowing and cutting the brush and trees and of widening existing trails. Various residents, interested innkeepers in and about Stowe, men from the Forestry Department of the State of Vermont and workers provided by Lift, Inc., Hotel, Inc., and other organizations interested in skiing, did the summer maintenance work on these trails.
Generally speaking, there were three classes of trails on Mt. Mansfield which those who used the ski lift might choose. There was one class of trails known as expert trails. To maneuver these trails required a high degree of skiing ability. The second class of trails were known as the intermediate trails. These trails were less hazardous and less difficult than the expert trails, but one to negotiate them safely needed to be a fairly good skier. The third class of trails were known as the novice trails. These trails were for those who had skied but little. [**5]
During the winter of 1948-1949, the policing of the trails was done by an association known as the Mt. Mansfield Ski Patrol. This ski patrol consisted of five or six good skiers who were paid by the Mt. Mansfield Ski Club. This club, in turn, raised its funds by contributions from individuals, corporations, innkeepers and the like. Its total budget for the winter season of 1948-1949 was in the vicinity of $ 3,000. Of this, about $ 1,000 was contributed by the Hotel, Inc. and another substantial sum by the Lift, Inc.
The duties of this Ski Patrol were many. It was the Patrol’s duty each day to inspect each trail to determine which trails were suitable for skiing and which were not. Having done this, the patrol would see to it that the blackboard in the Octagon House which listed the trails open for skiing would properly list those that were open for skiing on this particular day. The patrol would also see to it that such trails as were adjudged by it as unsafe for skiing were closed off by chain or rope and that warning signs were put up at the start of the trail and at other places warning that this particular trail was not open.
In addition, members of the patrol skied down the [**6] trails [*789] and kept their eyes open for any unsafe conditions that appeared on open trails. If there were any, patrol members took steps to put up proper warning flags or proper safeguards or notified officials of the lift that there was a dangerous spot at a certain place on a certain trail so that steps would be taken immediately either to erect proper warning notices or to close off the trail.
The main purpose of the members of the ski patrol was to be available in case of any injury to any skier. Ski patrol members were trained in first aid and had equipment staged at various places on Mt. Mansfield for the purpose of removing injured skiers safely and expeditiously to the bottom of the mountain and if necessary to a hospital.
On January 23, 1949, Mr. and Mrs. Wright, accompanied by Mr. Abrams, went from Fayston, Vermont, where the Wrights were both working at this time, to Stowe, Vermont, for skiing purposes. Mr. Wright was an expert skier, having been certified as such, and was engaged as a ski instructor at the Mad River Valley ski project. Mrs. Wright had been skiing for 2-3 years and had taken lessons from her husband and others. She was not what is known as an expert [**7] skier, but was in what is generally termed as the intermediate ski class. Mr. Abrams was not as good a skier as Mr. and Mrs. Wright, but was generally able to negotiate intermediate trails.
On the day in question, this party arrived at the foot of Mt. Mansfield around noon. Mrs. Wright and Mr. Abrams purchased a ticket for 75 cents apiece to ride to the top of Mt. Mansfield on the ski lift. Mr. Wright being a professional was not required to buy a ticket. This was a courtesy extended by the lift to professional skiers. In due time, the party arrived at the top of Mt. Mansfield via the lift. Mr. Wright checked to see what trails were open and the group then went to the start of the Toll Road trail. The Toll Road trail down Mt. Mansfield is a gravelled road used by automobiles during the summertime. It is about four miles in length and one who goes down the Toll Road all the way, comes out at a point about two miles from the bottom of the lift and to get back to the lift, has to either walk or go by taxi. This Toll Road is classified as a novice trail. The party skied down the Toll Road until they came to a cut-off from the Toll Road, known as the 5th Avenue Cut-off. The party then [**8] turned onto this cut-off and skied down the cut-off until they arrived at the Skimeister trail. They then swung down the Skimeister trail until they came to the head of an open slope known as the T-bar slope, thence down that slope to the foot of the mountain. In coming down the mountain, Mr. Wright would lead the way, followed by Mrs. Wright and then followed in turn by Mr. Abrams. They would ski a distance of 200-300 feet, more or less, then stop and visit and then after resting a little, Mr. Wright would start off again followed in due time by Mrs. Wright and Mr. Abrams. Mr. Wright would ski as far as he thought wise on a given lap, stop and Mrs. Wright would come up behind him, stop, and Mr. Abrams the same. The first trip down these trails on Mr. Mansfield was uneventful. The party then got back onto the lift, again Mrs. Wright and Mr. Abrams purchasing tickets for 75 cents and were conveyed to the top of Mr. Mansfield once more.
The three of them started once again down the identical route they had taken on the first descent; down the Toll Raod to the 5th Avenue Cut-off, down the 5th Avenue Cut-off to the Skimeister trail, down the Skimeister trail to the top of the T-bar and [**9] the open slopes. The 5th Avenue Cut-off is just what the name implies, a cut-off from the Toll Road trail to another trail. It was an easy trail, a novice trail. The Skimeister trail, on the other hand, was an intermediate trail. The second trip down the mountain by this party was uneventful until the party came onto the Skimeister trail. There, a couple of hundred feet from where the Skimeister trail ran into the open slope and the T-bar lift, the party stopped for a rest and visit. Then Mr. Wright, as was the procedure on this particular day, skied down about 120 [*790] feet or so to within sight of the head of the T-bar lift, and also within sight of the hut called the Christienda hut, which is located near the top of the T-bar lift. He stopped and turned around and watched his wife come along. As Mrs. Wright began to approach him, she went into what is known as a snow-plow. This is a procedure used by skiers for stopping. It consists of turning the toes in to about an angle of 30 degrees each and putting more pressure on the inside runner of each ski. As she was snow-plowing to a stop, she suddenly fell and began to cry out in pain for help. Mr. Abrams, in the meantime, was [**10] standing at the spot they had last stopped. He then skied to the spot where Mrs. Wright had fallen.
Mr. Wright rushed up from a spot 15-20 feet away. Shortly a member of the ski patrol arrived with a toboggan. Mrs. Wright was in pain and was loaded onto the toboggan, tied onto the toboggan and thus taken down to the foot of the mountain and thence by automobile to the Morrisville Hospital.
The trail at the point of the accident was of good width and was more or less level land. It wasn’t hazardous or steep in any way at this spot. No stump showed above the snow. There was a smooth snow surface. Indeed the Skimeister trail had ample snow. The witness Abrams testified that at the point of the plaintiff’s fall, he got down and brushed the snow aside with his hand. He then found a stump 4-5 inches high from the ground- definitely a cut tree- no jagged edges. From the evidence one could infer that it was this obstacle that caused Mrs. Wright to fall and break her left leg.
From this recitation of the facts, as viewed in the light most favorable to the plaintiffs, it is apparent that there is no evidence of any nature that connects the defendant, Stowe-mansfield Association, Inc., with [**11] this case. Stowe-Mansfield Association, Inc. neither owned or controlled any of the land on which this accident happened. It was merely a promotional enterprise for the Stowe-Mansfield area. Indeed, the plaintiffs make no claim, that as the evidence stands, there is liability upon Stowe-Mansfield Association, Inc.
Therefore, a directed verdict on this defendant’s part is granted.
The situation is different, however, in regard to the Lift Company and the Hotel Company.
In the eyes of the law, the plaintiffs were invitees of the Lift and Hotel Companies. Whenever one makes such use of another’s premises as the owner intends he shall, or such as he is reasonably justified in understanding that the owner intended, this is an implied invitation to enter onto the land of anther. Wool v. Larner, 112 Vt. 431, 436, 26 A.2d 89.
The Lift Company invited the plaintiffs to the top of the lift. It maintained on its premises a record as to which trails were open and had signs on its property for the purpose of leading the plaintiffs to their choice of trail, in this case the Toll Road Trail. Once on the trail and heading down onto the Skimeister Trail, part of which was on land of the Hotel Company. [**12] This trail the Hotel Company had sanctioned for years. Indeed, the reason for each of the trails mentioned being open was to financially benefit both the Lift Company and the Hotel Company.
The duty owed the plaintiffs, invitees, by each of these two defendants was to advise them of any dangers which reasonable prudence would have foreseen and corrected. Slattery v. Marra Bros., 2 Cir., 186 F.2d 134, 136.
Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of infinite kinds. Breakable crust may be encountered where soft snow is expected. Roots and rocks may be hidden [*791] under a thin cover. A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning.
[**13] Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.
The doctrine of volenti non fit injuria applies. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary. Thus one who goes ice skating on a rink assumes the ordinary risks of the sport which includes inequalities of surface. Oberheim v. Pennsylvania Sports and Enterprises. 358 Pa. 62, 55 A.2d 766, 769; Shields v. Van-Kelton Amusement Corp., 228 N.Y. 396, 127 N.E. 261; McCullough v. Omaha Coliseum Corp., 144 Neb. 92, 12 N.W.2d 639, 643. One who goes to a swimming beach as an invitee accepts the dangers that inhere in it so far as they are obvious and necessary. McGraw v. District of Columbia, 3 App.D.C. 405, 25 L.R.A. 691, 692-693. A passenger who rides on a scenic railway and falls off, through no unusual action of the railway, may not recover. The passenger has placed himself in a position of obvious danger for the purpose of receiving the sensation caused by the sudden and violent motion of the car. He assumed [**14] the risk. Lumsden v. L. A. Thompson Scenic Railway Company, 130 App.Div. 209, 114 N.Y.S. 421, 423.
One who had participated in bobsledding and had followed that sport for some years assumes the risk attendant upon participation of that sport. The bobsled enthusiast knew that bobsled racing was a dangerous sport and could not recover for such injuries received. Clark v. State, 195 Misc. 581, 89 N.Y.S.2d 132, 139.
In this skiing case, there is no evidence of any dangers existing which reasonable prudence on the parts of the defendants would have foreseen and corrected. It isn’t as though a tractor was parked on a ski trail around a corner or bend without warning to skiers coming down. It isn’t as though on a trail that was open work was in progress of which the skier was unwarned. It isn‘t as though a telephone wire had fallen across the ski trail of which the defendant knew or ought to have known and the plaintiff did not know.
The trail at the point of the accident was smooth and covered with snow. There were no unexpected obstructions showing. The plaintiff, in hitting the snow-covered stump as she claims to have hit, was merely accepting a danger that inheres in the sport of skiing. [**15] To hold that the terrain of a ski trail down a mighty mountain, with fluctuation in weather and snow conditions that constantly change its appearance and slipperiness, should be kept level and smooth, free from holes or depressions, equally safe for the adult or the child, would be to demand the impossible. It cannot be that there is any duty imposed on the owner and operator of a ski slope that charges it with the knowledge of these mutations of nature and requires it to warn the public against such. Chief Justice Cardozo in the case of Murphy v. Steeplechase Amusement Co., Inc., 250 N.Y. 479, 166 N.E. 173, 174, discusses the law, which I hold to be applicable to ski accident cases and I quote:
‘Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contract with the ball. * * * The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was [**16] not seeking a retreat for meditation.
Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
‘A different case would be here if the dangers inherent in the sport were obscure or unobserved. * * * Nothing happened to the plaintiff except what common [*792] experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe.’
The verdict is therefore directed for each defendant.
Mark Your Calendar: Winter Trails Day is January 7, 2012
Posted: October 18, 2011 Filed under: Skiing / Snow Boarding Leave a commentWinter Trails Offers Free Snowshoeing & Cross Country Skiing Across the U.S.
WHAT: The 17th annual Winter Trails Day sounds too good to be true, but it is true. Join us on Saturday, January 7, 2012, for a day of FREE snowshoeing and cross country skiing.
If you are new to winter sports, both snowshoe and cross country are easy to learn and fun for all ages — perfect for families or groups and a great way to get outside to exercise. We’ll have experts and the equipment on hand to help you get started, all you have to do is show up ready to have fun.
Discover your new winter passion. Additional information is available at: wintertrails.org.
WHO: Winter Trails is organized by SnowSports Industries America (SIA), the national non-profit member-owned trade association that represents suppliers of consumer snow sports products with constituents in the retail, rep and resort communities. It is supported by the Cross Country Ski Areas Association, the American Hiking Society and sponsoring snow sports companies.
WHERE: More than 80 locations throughout the U.S. Details are updated on wintertrails.org.
WHEN: Most events take place on January 7, 2012, however additional events occur throughout January including Winter Trails Day at Estes Park, Colorado on January 14, 2012. For complete details and event updates visit: wintertrails.org.
WHY: Snowshoeing and cross country skiing are two excellent winter outdoor activities that can be enjoyed by individuals, groups of friends and family members of varying ages. Snowshoeing and cross country skiing are affordable, easy to learn and provide moderate to vigorous exercise, depending on an individual’s effort.
With obesity rates in the U.S. at an all time high, Winter Trails introduces active (or not-so-active) children and adults to two classic winter sports. In 2011, more than 11,250 people participated in Winter Trails events across the country.
SPONSORS: Alpina Sports, Atlas Snowshoes, Backpacker Magazine, Crescent Moon Snowshoes, Cross Country Skier Magazine, Fischer Skis, Madshus, Mountain Safety Research (MSR), Rossignol, Salomon, SkiTrax Magazine, Snowshoe Magazine, Swix, Tubbs, Whitewoods and XCSkiresorts.com.
What do you think? Leave a comment.
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NJ court holds ski statute stops suit by snowboarding expert for hitting a post
Posted: October 16, 2011 Filed under: New Jersey, Ski Area | Tags: Adventure travel, New Jersey, Outdoor recreation, Rock climbing, Ropes course, Ski Resort, summer camp Leave a commentNeustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
You hit a post as an expert and expect the resort to be at fault
In this New Jersey decision, the plaintiff sued Mountain Creek Resort for the injuries he sustained when he snowboarded into a piece of PVC pipe holding orange netting. The netting was used to separate two runs, one for experts and one for beginners.
The plaintiff stated he swerved to avoid a cluster of skiers hitting the post. Under New Jersey law a manmade object should be removed as soon as possible, unless necessary for the normal operation of the resort. N.J.S.A. 5:13-3(a)(3)
The plaintiff claimed the defendant “plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” The judge at the trial court level dismissed the plaintiff’s case in the middle of the trial because the plaintiff had failed to prove his case.
The judge had also limited the testimony of the plaintiff’s expert witness because the expert witness had only visited the site once and his opinion included information and photographs that were not relevant to the facts of the case. The plaintiff’s expert did not have experience in running a ski operation so a large part of his opinion on the operation of the resort was also excluded.
After the dismissal the plaintiff appealed where the NJ Appellate court reached this decision finding for the defendant.
Analysis
The analysis of this case is very different. Normally you look at what the defendant did wrong, but what the plaintiff failed to do.
First the plaintiff hired an expert who either was asked or on his own went beyond the parameters of his area of expertise. An expert witness can only testify about what they have expertise either through experience, education or skill has specialized knowledge or expertise in an area. However that area is strictly defined. When an expert offers opinions beyond the area of expertise the court is required to eliminate or restrict the testimony.
Second, to go forward with a case and to ultimately win a decision at the trial court level the plaintiff has to prove all of the points necessary to prove negligence or to prove the statute was violated. Here, when the plaintiff lost the expert witnesses testimony he did not have enough proof to sustain his case.
What do you think? Leave a comment.
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Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Posted: October 16, 2011 Filed under: Assumption of the Risk, Legal Case, New Jersey, Ski Area, Skiing / Snow Boarding | Tags: additionally, Assumption of risk, case-in-chief, correctly, essential element, expert testimony, failed to present, fence post, fencing, Hazard, hazardous, inflexible, involuntary dismissal, legitimate inferences, man-made, photographs, pole, practicable, reasonable time, reconstructed, Ski, ski area, Ski Resort, Skier, skiing, Slope, Snow, Snowboarders, sufficient evidence, Trail Leave a commentNeustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Mark Neustadter and Katherine Neustadter, Plaintiffs-Appellants, v. Mountain Creek Resort, Inc., Defendant-Respondent.
DOCKET NO. A-5671-05T5
Superior Court of New Jersey, Appellate Division
2008 N.J. Super. Unpub. LEXIS 1584
September 11, 2007, Argued
February 15, 2008, Decided
NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Certification denied by Neustadter v. Mountain Creek Resort, 195 N.J. 521, 950 A.2d 907, 2008 N.J. LEXIS 721 (2008)
PRIOR HISTORY: [*1]
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-670-03.
CORE TERMS: pole, man-made, hazard, ski, skier, trail, sufficient evidence, involuntary dismissal, expert testimony, failed to present, fence post, fencing, slope, ski resort, assumption of risk, photographs, correctly, hazardous, skiing, snow, reconstructed, snowboarders, ski area, reasonable time, legitimate inferences, essential element, case-in-chief, additionally, practicable, inflexible
COUNSEL: John R. Lanza argued the cause for the appellants (Lanza & Lanza, LLP, attorneys; John R. Lanza, of counsel; Mr. Lanza and Kenneth W. Thomas, on the brief).
Samuel J. McNulty argued the cause for the respondent (Hueston McNulty, attorneys; Mr. McNulty, of counsel and on the brief).
JUDGES: Before Judges Skillman, Yannotti and LeWinn.
OPINION
PER CURIAM
Plaintiffs, husband and wife, appeal from the trial court’s grant of an involuntary dismissal at the end of their case seeking damages for injuries allegedly sustained by plaintiff-husband, Mark Neustadter (hereinafter “plaintiff”), in an accident on defendant’s premises, a ski resort.
On January 7, 2002, plaintiff, an acknowledged snowboarding expert, was injured while snowboarding at defendant’s resort when he collided with a post supporting orange netting on the slope. The gravamen of his negligence claim was that the post was so deeply embedded in snow, and of such an inflexible material, that it was immovable and took the full force of his body, resulting in a shattered knee.
At the conclusion of plaintiff’s case, the trial judge determined that plaintiff had not presented [*2] sufficient evidence to allow the jury reasonably to find liability on defendant’s part. The judge also concluded that plaintiff had failed to adduce any evidence to show the injury in question was caused by the collision with the identified fence post. Accordingly, the judge dismissed the complaint.
Plaintiff raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ [SIC] MOTION FOR AN INVOLUNTARY DISMISSAL PURSUANT TO R. 4:37-2(b)
A. AS TO THE MEDICAL EXPERT, DR. WEISS
B. AS TO THE LIABILITY EXPERT, MR. HANST
1. THE PHOTOGRAPHS
2. THE ALLEGED NET OPINION
POINT II: THE TRIAL COURT IMPROPERLY LIMITED THE EXPERT TESTIMONY OF DR. WEISS AND MR. HANST
POINT III: THE TRIAL COURT ERRED BY PERMITTING DEFENDANT TO CROSS-EXAMINE PLAINTIFF’S EXPERT WITH A DOCUMENT IT FAILED TO PRODUCE IN DISCOVERY
POINT IV: THE TRIAL COURT IMPROPERLY EXCLUDED THE INTRODUCTION OF PLAINTIFF’S MEDICAL BILLS INTO EVIDENCE
POINT V: THE TRIAL COURT SHOULD NOT HAVE PERMITTED DEFENDANT TO NAME A MEDICAL EXPERT AFTER THE CONCLUSION OF THE ARBITRATION
Having thoroughly reviewed the trial record, we are convinced the judge properly limited the testimony of plaintiff’s liability expert and correctly [*3] concluded that plaintiff had not presented sufficient evidence to allow the jury reasonably to find liability on defendant’s part. This conclusion makes it unnecessary to reach the other issues raised on appeal.
In his complaint, plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” He set forth the “particulars” of defendant’s negligence as follows:
a) Defendant knew, or in the exercise of reasonable care should have known, that the unprotected pole was dangerous, and Defendant failed to warn Plaintiff of that condition;
b) Defendant failed to cover the pole with a material in order to protect Plaintiff from being injured should Plaintiff come into contact with the pole;
c) Defendant knew, or should have known, that the pole, if left open and exposed was likely to be dangerous to ski[ers] and snowboarders, and with such knowledge Defendant failed to cover the pole or use any other means to keep it safe for its business invitees;
d) Defendant failed to cover the pole with a protective covering for the protection of skiers [*4] and snowboarders; and
e) Defendant permitted the pole to be left unprotected and defective and dangerous knowing that the pole would necessarily pose a risk of harm to Plaintiff and other business invitees, skiers, and snowboarders.
Plaintiff proffered John H. Hanst as his liability expert. Hanst rendered a report on May 21, 2005. Other than his review of documents, Hanst’s opinions were based solely upon his one and only site visit to the ski resort on March 24, 2005, more than three years after plaintiff’s accident.
During that site visit Hanst “reconstructed” the accident with plaintiff and described the reconstruction in his report as follows: “We walked up the trail to the area where the incident occurred. The area was modestly changed. . . . A few of the fence posts have been covered with padding although the majority of them were not padded.” (Emphasis added). Hanst included photographs of the reconstructed accident scene in his report.
Defendant challenged Hanst’s report and testimony in an in limine motion. Defendant contended that Hanst described “conditions that were not those described by the Plaintiff. . . . H[is report] talk[ed] about a condition that did not exist and [wa]s [*5] not relevant or material to the case that w[ould] be before th[e] Court.”
In ruling on that motion, the trial judge found that Hanst’s report described conditions that were not in existence “on the date of [plaintiff’s] . . . accident. . . . They were at a [much later] time . . . when the conditions on the slope were not the same. Nobody can say they were the same.” (Emphasis added).
The judge limited Hanst’s testimony to “what conditions should exist on a ski slope and how the conditions on the day in question deviated, based upon the testimony of Mr. Neustadter.” The judge also ruled Hanst’s photographs of the reconstructed accident scene inadmissible because they “specifically show poles that are different from those that are described by Mr. Neustadter as existing in the area where he was injured on the day in question.” In the course of his ruling, the judge noted that Hanst’s report did not address plaintiff’s claim that “the poles had been in the snow too long and ice had formed around them and possibly they didn’t flex the way they should.”
At trial, plaintiff testified that he swerved to avoid a cluster of skiers ahead of him. This caused him to collide with a PVC pole, one to [*6] two inches in diameter, that was supporting orange mesh fencing erected to distinguish the expert trail from the novice trail.
At the conclusion of Hanst’s voir dire, the judge limited his qualification as an expert to the area of alpine skiing, and excluded him from giving expert testimony on the subject of “mountain management” since he had no experience in that field. The sum total of Hanst’s liability testimony was that a rigid pole was a “man-made hazard,” and the ski operator had an obligation to reduce or eliminate that hazard.
After plaintiff had completed presentation of his case-in-chief, defendant moved for involuntary dismissal of the complaint pursuant to Rule 4:37-2(b). The judge granted the motion finding that plaintiff failed to present sufficient evidence to establish liability under the Ski Statute, N.J.S.A. 5:13-1 to -11. The judge additionally found that plaintiff failed to present sufficient evidence to show that any negligence on the part of defendant was a proximate cause of his injury. On June 23, 2006, the judge entered an order memorializing his findings. This appeal followed.
Plaintiff argues that the judge erred by granting defendant’s motion for involuntary [*7] dismissal of their complaint. He maintains that defendant had a duty under the Ski Statute to remove any “obvious man-made hazard” from the premises. Plaintiff contends that he presented evidence showing that he struck a man-made fence pole. He contends further that, because his evidence showed that the post was rigid, thereby constituting a “hazard,” the jury should have been permitted to determine whether defendant failed to discharge its duty to remove the pole. We disagree.
Rule 4:37-2(b) provides that, upon completion of a plaintiff’s case-in-chief,
the defendant . . . may move for dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. . . . [S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor.
In other words, dismissal is appropriate where the court determines that no rational jury could conclude from the evidence that an essential element of plaintiff’s case is present. “The trial court is not concerned with the worth, nature or extent . . . of the evidence, but only with its existence, viewed most favorably to [*8] the party opposing the motion.” Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). Where, as here, plaintiff failed to adduce expert testimony on the essential element of liability, such failure will warrant dismissal of his personal injury action.
The Ski Statute clearly defines the respective liabilities of skiers and ski operators, and sets forth the duties of both and the assumption of risk borne by skiers. N.J.S.A. 5:13-1 to -5. The statute states that a skier’s assumption of risk under N.J.S.A. 5:13-5 bars recovery for injuries sustained due to “the inherent risks of skiing . . . created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions.” N.J.S.A. 5:13-6 states that a skier’s assumption of risk:
shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a skier for injuries resulting from the assumed risks, . . . unless an operator has violated his duties or responsibilities under this act, in which case the provisions of [comparative negligence] shall apply.
The Ski Statute imposes upon the ski operator a duty to “[r]emove as soon as practicable obvious, man-made hazards.” N.J.S.A. 5:13-3(a)(3). [*9] However, the statute expressly exempts a ski operator from liability for its failure to remove man-made hazards such as fencing or poles which are necessary for the normal operation of a ski resort, as follows:
No operator shall be responsible to any skier or other person because of its failure to [remove obvious man-made hazards] if such failure was caused by . . . the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type, racing poles, or any other object or piece of equipment utilized in connection with the maintenance of trails . . . used in connection with skiing.
[N.J.S.A. 5:13-3(b)(3) (emphasis added).]
In addition, a ski operator shall not be held liable for failure to remove obvious, man-made hazards unless the operator “has knowledge of the failure to [remove man-made hazards]” or “should have reasonably known of such condition and having such knowledge has had a reasonable time in which to correct [the] condition.” N.J.S.A. 5:13-3(d).
Plaintiff failed to present any evidence to support his allegations that the fence post was an obvious, man-made hazard; or that defendant had actual or constructive [*10] knowledge of an obvious, man-made hazard relating to plaintiff’s injuries; or that defendant failed to remove such a hazard within a reasonable time. Therefore, the trial judge correctly found that plaintiff failed to present sufficient evidence from which a jury could reasonably find that defendant failed to meet its duty under N.J.S.A. 5:13-3(a)(3) to “[r]emove as soon as practicable obvious, man-made hazards.” As the trial judge recognized, liability may not be imposed under the Ski Statute if a ski operator’s failure to comply with N.J.S.A. 5:13-3(a)(3) was caused by the “location of man-made facilities” that are “necessary for the ordinary operation of the ski area[.]”
In his decision on the record, the judge aptly observed that there was nothing inappropriate about the placement of the fence posts delineating the expert trail and the novice trail; and it was plaintiff’s burden to show, through expert testimony, that something had happened to the poles after their installation which rendered them hazardous and not “necessary for the ordinary operation” of the facility. The judge properly determined that plaintiff had not met his burden in this regard. Moreover, the judge rightly [*11] found that plaintiff had not presented any evidence to show that defendant was aware, or reasonably should have been aware, that the poles had become hazardous for a reasonable period of time in which to address that condition. Therefore, the judge correctly determined that the evidence presented by plaintiff, and the “legitimate inferences” that could be drawn from that evidence, were insufficient to “sustain a judgment in plaintiff’s favor.” R. 4:37-2(b).
Plaintiff additionally argues that the judge erred by limiting Hanst’s testimony at trial. Again, we disagree. A trial judge has the discretion to determine whether an expert is competent to testify. Carey v. Lovett, 132 N.J. 44, 64, 622 A.2d 1279 (1993). As we stated previously, the judge barred Hanst from testifying concerning the fencing on defendant’s premises because Hanst’s opinions were not based on the conditions that existed at the time plaintiff was injured. At trial, the judge also precluded Hanst from testifying that defendant should have had special “break away poles” and refused to permit Hanst to speculate as to whether weather conditions that might have existed at the time of the accident caused the PVC poles to become inflexible. [*12] None of those issues had been addressed in Hanst’s report. We are convinced that the judge did not abuse his discretion by limiting Hanst’s testimony.
Affirmed.
CAIC BENEFIT BASH
Posted: October 14, 2011 Filed under: Avalanche Leave a commentNovember 12th, 2011
Presented by:
Backcountry Access, La Sportiva, Voile, Vail Resorts, New Belgium Brewing Company
Featuring: Green River Vibe
The Friends of CAIC is proud to announce the 4th Annual CAIC Benefit Bash! This year is shaping up to be the best party we have thrown yet. Last year was a blast and sold out in under an hour. We hosted 1500 people and raised just over $45000 for the CAIC.
This year we expect much of the same; A sell out crowd, a kick ass band, tons of gear, a massive silent auction, a plethora of food, great New Belgium beer, and a massive effort to raise $50k to go toward avalanche forecasting and education in Colorado!
The Details:
When: November 12, 2011
Time: 5pm-10pm and then of course an after party with some dance lessons
Where: The Breckenridge Riverwalk Center
Tickets are available HERE. WE WILL SELL OUT SO GET THEM EARLY!
Discount Hotel Rooms are available at the Village Hotel: Please call Breckenridge Hospitality Reservations Department at (888)-525-1787 and ask for group code BC1CAI
Sponsors:
BCA
Vail Resorts
Voile USA
La Sportiva
Aspen Skiing Company
Mountain Khakis
REI
Epic Quest
Vail Racquet Club
Smith Optics
Babes in the Backcountry
Venture Snowboards
Ski and Snowboard Journal
Mammut
Freeride Systems/Prospect Pant Co.
Friends of Berthoud Pass
Unity Snowboards
Scarpa
Gatherhouse Studios
Rab USA
Woodwinds Property Management
Wildernest Lodging
Monarch Mountain
Powder Addiction
Alpine Quest Sports
KKVM The Mile
Summit Ford
Alta
Orage
Line Skis
Hestra
Eider
The Sleep Shop
MFD ALL TIME
Steamboat Powdercats
FlyLow
Nightmare Snowboards
Melanzana
Wilderness Exchange Unlimited
Summit Huts
Abbie Groves Artwork
Mountainsmith
Krystal 93
Black Diamond
Mountain Buzz
Patagonia
Alpine World Ascents
Mountain Haus Lodge
Fortitude Skis
Backcountry.com
Billabong
Kling Mountain Guides
American Rec
Slope Style
Cuppa Joe Breckenridge
Hearthstone
Silverton
Avalanche Mapping
TGR!
Alaska Heli Skiing
Mountain Outfitters
Fatypus Skis
Icelantic Skis
Salomon Skis
NRC Broadcasting
Summit Foundation
Ortovox
Woodward at Copper
The Big Hit
AMR
Minturn Anglers
Guiry’s Color Source
Loveland Ski Area
Copper Mountain
Christy Sports
Powder Tools
Vail Mountain Coffee
Wilderness Sports
Ski Logik
Summit County Rescue Group
Specialized Stump Removal
Rocky Mountain Guides
Kayak Lake Dillon
Ten Mile Café
First Ascent Mountain School
Larry’s Boot Fitting
Vail Powder Guides
San Juan Snow Cat Tours
Rack Attack
Green Mountain Sports
Confluence Kayaks
Billy’s Inn
Rise and Shine Biscuit Café
Sports Optical
Food Sponsors:
Kenosha
Giampietros
Downstairs at Erics
Relish
Mi Casa
North Side Pizza
Michael’s
Taddeos
Fatty’s
A Café
Twist
Harvest Catering
This is going to be so much fun!
Do Something
What do you think? Leave a comment.
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Colorado Resorts invest millions in everything from terrain parks to parking
Posted: October 11, 2011 Filed under: Ski Area Leave a commentDenver, Colo. – August 30, 2011 – Colorado Ski Country USA (CSCUSA) resorts show continuing dedication to maintaining the highest standard in ski vacations with preparations and investments for the 2011/12 season. From minor developments that will seamlessly improve guest experiences, to major renovations that will allow resorts to continue to provide the excellent service to which guests have become accustomed, resorts have devoted more than $50 million to new projects for the upcoming season.
According to National Ski Areas Association, the United States had more skier visits in 2010/11 than any previous ski season in history, surpassing the 60 million mark. Colorado resorts accounted for more of these visits than any other state in the nation with more than one in five skiers choosing to ski at a Colorado resort.
“Without question, Colorado Ski Country’s resort facilities allow the state to provide the absolute finest ski vacation experience available,” said Melanie Mills, president and CEO of CSCUSA. “Colorado has always set the standard with advanced improvements from high-tech lifts and ticketing systems, to state-of-the-art terrain parks and on-mountain amenities.”
Below is a roundup of what’s new in Colorado Ski Country for the upcoming season. The energy and capital spent by resorts on infrastructure includes improvements that will impact all ages and abilities, and are either winter specific or year-round.
New Lifts
Aspen/Snowmass’s Buttermilk Mountain will have a new lift and gladed terrain this season. The new Tiehack Express lift, a Leitner Poma high-speed quad, will replace both the Eagle Hill and the Upper Tiehack lifts, cutting the combined ride time from 18 minutes to just under seven minutes. New construction has already begun on the project, and a complete installation is expected for the resort’s December 2011 opening. In addition to the new lift, there will be some additional gladed terrain in the area.
Copper Mountain is replacing the High Point Lift in West Village (formerly Union Creek) with a new lift that will provide improved service for all levels of skiing and riding ability. The Union Creek High Speed Quad, manufactured by Doppelmayr USA, will have a new alignment to help improve skier and rider circulation in and out of West Village. In conjunction with the new lift, the addition of a new trail connection from the east will make the circulation much easier from the Catalyst Terrain Park and the beginner and intermediate terrain in the area.
A new lift will reside at Loveland as that resort replaces Chair 4 with a new fixed grip triple from Leitner Poma, while Monarch’s renovations for next season will also include a new lift. A 450 ft. long conveyor lift on Snowflake is being installed in time for the resort’s opening.
For the upcoming season, Ski Cooper is installing a 770 ft. Magic Carpet to replace the Printer Boy Platter. This sizable improvement will be at the base area of the mountain, in the ski school and beginner skier and rider area.
Terrain Park Improvements
Some of the most creative accelerations of the off-season are taking place in the terrain parks of Colorado Ski Country. SolVista Basin at Granby Ranch is adding a number of new features to its terrain park for the upcoming year, including an underground gas tank, a six-foot tall satellite dish and log jibs. Leading the improvements in SolVista’s terrain parks is Ted’s Secret Stash, an all natural log park off the Jackalope run; and Progression Park, a beginner terrain park at the base area; and the newest feature The Tank, a former underground fuel tank that is eight feet in diameter, 30 feet long, and boasts a quarter-pipe on each end.
Another resort with new terrain park features is Echo Mountain. Echo has continued to improve its trails and park features for the 2011/12 season and is making its trails larger and the park more challenging.
Rounding off terrain park improvements, Winter Park’s Rail Yard Terrain Park’s Super Pipe “Dig-In” will be completed during the early season, which will result in the Half Pipe being opened by Christmas and will see a reduction of water and energy by using less manmade snow. The progressive terrain park system will also see another boost of new features this coming season.
Guest Activities
Guests can now add zip-lining to the menu of activities at CSCUSA resorts. New and open for the season at Crested Butte Mountain Resort (CBMR), is a Zip-Line Canopy Tour. This major addition to CBMR resort amenities will be open year-round, enabling guests to ski to it during the winter months.
In addition to Crested Butte’s zip-line, the Purgatory Plunge Zip-Line at Purgatory at Durango Mountain Resort opened in the off-season and will also be open year-round. The Purgatory Plunge gives guests the opportunity to soar from the Purgatory Village Tower over the ski beach at speeds of approximately 35 mph.
Monarch Mountain is expanding their fleet of touring snowcats with the purchase of a new one for the 2011/12 season. This new snowcat has the capacity to comfortably fit 14 skiers and riders in the cabin.
The Vista Ridge Ceremony Site was completed this summer at SolVista Basin at Granby Ranch. A scenic wedding site that overlooks the Continental Divide, Vista Ridge has a 360 degree view of the peaks of Rocky Mountain National Park. The mountaintop venue is accessed by chairlift, located adjacent to an aspen grove, and offers full ski-down capabilities for those looking to participate in winter nuptials.
Wolf Creek is building a new race hut to replace the one under the Raven Lift. Participants in the resort’s popular Fun Race Series will enjoy the benefits of an upgraded facility to house the race equipment, announce times, and serve as the official finish line for the races.
Dining Facilities
At Aspen/Snowmass, Aspen Skiing Company (ASC) is beginning construction on a new Elk Camp Restaurant. The new restaurant, expected to be open in 2012/13, will replace Café Suzanne and will be located adjacent to the top of the Elk Camp Gondola at Snowmass. The Elk Camp Restaurant will provide seating for up to 300 guests and include summer and evening event space. The project is scheduled to be LEED Certified and to implement advanced heating systems with other green materials to beat local energy codes by an estimated 30 percent. Elk Camp will be ASC’s fifth LEED certified building, following closely on the heels of Sam’s Restaurant (Gold) and Holiday House (Platinum).
Also at Aspen/Snowmass, The Merry-Go-Round restaurant, situated mid-mountain at Aspen Highlands, is undergoing a major remodel to make the building more energy efficient as well as enhance guest comfort and food quality. The reopening is scheduled for opening day of Aspen Highlands on December 10, 2011.
At Crested Butte, renovations to the Paradise Warming House, the mid-mountain cafeteria style culinary facility, are underway. The resort is redesigning the food line, creating new signage and giving the facility an overall updated look that will further enhance the guest experience.
Restroom improvements have been underway at Ski Cooper, as the resort is installing a vaulted toilet at the bottom of the Piney Basin Triple Chair. Wolf Creek on the other hand, has renovations underway for Treasure Lift’s water free, composting restrooms in preparation for next season. This structure also houses a coffee café, offering homemade pastries, coffee and teas throughout the day.
In Steamboat, the resort is creating a new bar, located in the Cabin Restaurant at the Steamboat Grand. The newest après ski hot spot just across from the Gondola Square base area, it has a unique menu featuring Kennebec Chips with Sriracha Aioli, the Deconstructed BLT (pork belly, tomato jam and arugula, charred on a cedar plank), and Buffalo Carpaccio.
Snowmaking/Grooming
Copper Mountain will enter 2011/12 in partnership with the U.S. Ski and Snowboard Association (U.S.S.A.) to develop an on-snow training center at the resort. To support and develop the U.S. Ski Team Speed Center at Copper, the resort is implementing a new automated snowmaking system, as well as safety, communications and timing equipment necessary to develop a unique training venue. The on-snow training center will operate from November 1 – December 10 each winter season, and will bolster the U.S. Teams’ ability to train for speed events before the competitive season begins.
On-mountain improvements continue at Crested Butte as the resort is enhancing its kids’ trails. These are trails that ski instructors bring their students through that add excitement to the lesson, whether it’s winding through trees, over humps and other terrain, or going around obstacles. The trails have become extremely popular with younger guests and also correlate to Crested Butte’s Kids Trail Map.
Winter Park is also enhancing its beginner trails. Beginners will now have an easier trail to the Village at Winter Park with the opening of the new Sorensen Trail Bypass.
Loveland is adding snowmaking capabilities to Twist at Loveland Valley and Firecut at Loveland Basin, which will expand the resort’s early and late season race training opportunities.
Eldora Mountain Resort has invested heavily in upgrading its snowmaking system which will enrich the on- snow experience in the upcoming season.
Purgatory at Durango Mountain Resort is upgrading its expert terrain via a winch-cat that will provide high-angle grooming. Some expert trails will be groomed or partially groomed using this technique, which will provide a great experience for expert skill level skiers and riders.
Wolf Creek’s grooming fleet of snowcats has a new addition this season, bringing one of the first Finnish snowcats to the US, the Formatic. This heavy equipment is used to smooth terrain and help pack down the powder during storm cycles.
Continuing to improve the versatility to its slopes, Steamboat Resort will be upgraded its snowmaking, while also adding a new snowcat to its slope grooming fleet.
Winter Park is also adding a new snowcat for superior groomed runs. Other capital at the resort has been re-invested into improving existing infrastructure and services.
Rental Fleet
Crested Butte significantly enhanced their demo and learning rental inventory for the upcoming season. The resort bought all new demo gear for its higher end fleet, as well as a brand new Learn to Ride fleet, including women’s and children’s gear.
Along with Crested Butte, Monarch is planning to expand their demo and rental gear offerings. The resort has set aside funds to devote to new rental and demo equipment in hopes of encouraging participants to try out these new items.
Wolf Creek Ski Area’s rental department continues to upgrade its offerings by adding gear to its already extensive collection of boots, skis and snowboard equipment. Along with newly purchased alpine skis, snowboards, boots and poles, Wolf Creek is bringing in a line of Nordic skate skis and classic touring skis to its fleet.
Mountain Facilities
Thanks to the Red Bull Cold Rush, Silverton has brand new carpeting in the base tent for the 2011/12 season, while Monarch has invested in renovating its parking lot to allow for further ease of access and create a more user-friendly parking area.
Loveland’s Ptarmigan Roost Cabin, which sits at the top of Chair 2, is getting a facelift for 2011/12. The resort will be adding restrooms – the first on-hill facilities at Loveland – and restoring the original fireplace. Additionally, the E-Tow Cabin, between Chair 2 and Chair 6, is receiving a massive overhaul including a new interior and an expanded deck. Further cosmetic upgrades at Loveland taking place throughout the off-season will be noticeable to guests at the base areas of both Loveland Basin and Loveland Valley.
Steamboat Resort is installing heated pavers throughout Gondola Square base area so that guests will no longer need to trudge through snow and ice as they walk to the slopes and the Gondola. In addition, the multi-year Promenade project continues to make headway, connecting the base area with Ski Time Square, and includes a new permanent stage facility in Gondola Square which plays host to the resort’s free spring concerts.
Technologies
In 2011/12, resorts continue to use technology in unique ways that streamline and enhance the way they interact with skiers and riders. Arapahoe Basin is upgrading its e-commerce store with a new RTP E-Store. This new site will better serve guests’ needs and allow Arapahoe Basin to offer more of its products online.
Aspen Skiing Company’s ongoing energy efficiency project, whereby the resort has been replacing incandescent bulbs with efficient and aesthetically acceptable fluorescent or LED bulbs, will reach completion on December 31, 2011. On this date, all incandescent bulbs will have been completely banned and replaced, including in every building, from on-mountain restaurants to hotels, and from executive offices to parking lots.
What do you think? Leave a comment.
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In New York a skier assumes the risk of a collision with another skier.
Posted: October 10, 2011 Filed under: Ski Area, Skier v. Skier Leave a commentWhitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
A quick decision supporting the idea that you assume the risk when engaging in recreational activities.
In this decision, the New York Appellate court (called the Supreme Court of New York) upheld the summary judgment of the lower court. The case was between the plaintiff and two defendants. The plaintiff was injured by the minor defendant while skiing. The first defendant was a minor who was involved in the collision with the plaintiff. The second defendant was the youth organization that brought the minor to the ski area. It is unclear, but one of the parties in the collision was snowboarding.
Summary of the case
The court stated that when engaging in a sport or recreational activity participants consent to those “commonly appreciated risks, which are inherent in and arise out of the nature of the sport generally and flow from such participation….” The court found that the risk of injury from a collision with another skier was an inherent aspect of the sport as based on the New York Ski Statute.
GENERAL OBLIGATIONS LAW
ARTICLE 18. SAFETY IN SKIING CODE
NY CLS Gen Oblig § 18-101 (2011)
§ 18-101. Legislative purpose
The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry. [emphasize added]
From the statute the court stated, “The risk of injury caused by another skier is inherent in downhill skiing.” The defendant had also submitted evidence that he was not “engage in instances of reckless, intentional or other risk-enhancing conduct not inherent in snowboarding that might have caused the accident” which the plaintiff did not argue.
The minor defendant won the motion for summary judgment because in New York, a collision is an inherent risk of the sport of skiing. Inherent risks are risks that you must accept when participating in a sport.
The defendant youth organization was dismissed because it exercised reasonable care in supervising the youth. The organization arranged for ski lessons, and once the ski lessons were over, told the youth to stay on the bunny slope.
The court also stated, “Furthermore, the actions of the participants interrupted the causal link between National Council’s alleged negligence and plaintiff’s injury.” I’m not sure what this means. However, it would imply that the plaintiff and or defendant did something that removed the defendant’s actions from the control of the defendant organization. There was an intervening action on the part of the defendant, like leaving the bunny slope that removed the defendant youth group for the chain of liability.
So?
The case is very short and easy to read. As wonderful as that is, it also leaves out a lot of facts. You also don’t know how the court arrived at its decision. However, it reinforces the issue of assuming the risk for your own actions. If you engage in a sport or recreational activity, you assume the risks inherent in the sport. Those risks include the risks defined as inherent by a statute.
Do your guests understand the inherent risks of the activity you are presenting to them? Even though you may win a lawsuit, the cost of explaining those risks, through the litigation process is very expensive. It is better to educate your guests in advance about the risks they are going to encounter.
More importantly, when skiers and boarders realize they cannot sue for collisions it will lower the cost to the ski area. Collisions cost the ski area to pay employees to attend depositions and trials, to gather and distribute documents and evidence and to pay for attorneys to help and attend the legal meetings with clients. On a simple case that goes to trial, that amount can easily add up to $50,000 per collision that the ski area spends.
It also provides information for third parties bringing youth to a ski area. Youth need to be supervised in New York. That does not mean constant supervision, but based on the age of the youth, it requires supervision that is appropriate.
Ski lessons and controlling the range the youths were allowed to ski is important and critical here in releasing the defendant youth group from the claims of the plaintiff.
What do you think? Leave a comment.
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