Skier claims resort liable for boundary rope, in place to prevent collisions, which she collided with…..

Posted: January 23, 2012 | Author: Recreation Law | Filed under: New Mexico, Ski Area | Tags: New Mexico, Ski Patrol, Ski Safety Act, Summary judgment, Taos Ski Valley, Taos Ski Valley New Mexico, United States, United States Forest Service | 1 Comment

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see

The plaintiff in this case suffered a broken back, ribs, hip and pelvis after hitting a rope used to direct traffic at Taos Ski Valley, Inc (referred to as TSV by the court). The plaintiff was an experienced skier, and the rope had been in place for twelve years.

The plaintiff sued for:

…failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles; TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages; TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary; and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV….

Taos moved to dismiss three of the claims with a motion based on a failure to state a claim. That is a motion that argues based on the allegations of the plaintiff’s complaint, there is no legal liability on the part of the defendants. The plaintiff has failed to state a legal claim that the defendant can be held liable for. Two of those claims were dismissed.

The ski area then filed a motion for summary judgment, which dismissed the remaining claims of the plaintiff based on the New Mexico Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq.

So?

The plaintiff appealed the dismissal of her case. The first basis of her appeal was based on the NM Ski Safety Act. The act provides that:

…every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so….

She argued that the installation of the rope created a hazard which the ski area did not warn her about.

The court agreed with the ski area and held that even if the rope was a hazard, it was not feasible to correct the hazard and thus, under the statute, not a hazard the ski area needed to warn the plaintiff about.

The plaintiff then argued the ski area breached its duty because it did not mark its trails with the appropriate signage.

Section 24-15-7(C) provides:

Every ski operator shall have the following duties with respect to the operation of a skiing area:

* * *

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .

The plaintiff’s expert witness opined that three ropes would be better and easier to see. However, the court found the expert’s opinion to be speculation and not persuasive. (Personally, three ropes create a real barrier. Think skiing into a fence rather than one line.)

The plaintiff’s next argument procedural in nature. Normally, I leave procedural issues out of this reviews, however this one might be good to know. The plaintiff wanted to depose the resort’s Chief Groomer and the Assistant head of the Ski Patrol. The resort filed a motion for a protective order which prevented the plaintiff from deposing these employees.

The appellate court held that since one of the senior employees of the resort was the responsible person, to who both subordinate employees ultimately reported, there was no need to depose the two employees. The Ski Area General Manager testified that he had the ultimate responsibility for marking the resort, which was enough for the court to prevent additional discovery.

The final issue not covered by the New Mexico Ski Safety Act is the plaintiff’s claim that based on the Special Use Permit issued by the US Forest Service to the ski area, she was a third party beneficiary, and permit/contract was breached.

This argument was rejected because the language of the New Mexico Ski Safety Act language indicated that the provisions within the act were to be the only remedy available to injured skiers.

The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].

As the sole remedy, the arguments of the plaintiff did not give rise to a claim.

So Now What?

This is a classic “damned if you do and damned if you don’t” situation for a defendant. If you don’t put up the rope, skiers are going to collide, causing injuries. If you do put up the rope, a skier may hit the rope. This is the balance test that a business must do in the US. To quote a sixties TV show turned into a 1980’s movie “In any case, were I to invoke logic, logic clearly dictates that the needs of the many outweigh the needs of the few.”

What do you think? Leave a comment.

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Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Posted: January 23, 2012 | Author: Recreation Law | Filed under: Legal Case, Ski Area | Tags: Memorandum Opinion, New Mexico, Taos Ski Valley, Taos Ski Valley New Mexico, United States | Leave a comment

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Becky J. Kidd, Plaintiff-Appellant, v. Taos Ski Valley, Inc., Defendant-Appellee.

No. 95-2066

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

July 5, 1996, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (CIV-93-327-JC).

DISPOSITION: AFFIRMED.

COUNSEL: Grant Marylander (Jim Leventhal and Natalie Brown, of Leventhal & Bogue, Denver, Colorado, and Marion J. Craig, III, Roswell, New Mexico, with him on the briefs) of Leventhal & Bogue, Denver, Colorado, for Plaintiff-Appellant.

Joe L. McClaugherty (Jere K. Smith with him on the brief), Santa Fe, New Mexico, for Defendant-Appellee.

JUDGES: Before BRORBY, BARRETT, and LIVELY, ^* Circuit Judges.

* The Honorable Pierce Lively, Senior Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.

OPINION BY: BARRETT

OPINION

[*850] BARRETT, Senior Circuit Judge.

Becky J. Kidd (Kidd) appeals from a memorandum opinion and order granting Taos Ski Valley, Inc. (TSV) summary judgment and dismissing her complaint with prejudice.

Kidd suffered a broken back, ribs, hip, and pelvis in a skiing accident at TSV. “Her injuries were possibly received when she crossed a diversionary rope located on an area permanently marked as a slow skiing area by a huge orange banner.” (Appellant’s Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445). “The black and [**2] yellow rope, held up by bamboo poles and marked with strips of orange fluorescent flagging, was intended to close off a portion of the mountain to prevent collisions between skiers returning to the base from different sides of the mountain.” Id. “Plaintiff, an experienced TSV skier, never saw the rope closure.” Id. at 445-46.

Kidd filed a complaint in which she alleged, inter alia, that: TSV, in installing the diversionary rope, had breached its obligations under New Mexico’s Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq. (the Act), by failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles (Count I); TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages (Count II); TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary (Count III); and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV (Count IV).

TSV moved to dismiss Counts II, III, and IV for failure to state a claim [**3] upon which [*851] relief could be granted. The district court denied TSV’s motion to dismiss Kidd’s Count II punitive damage claim, concluding that although the Act was silent on the availability of punitive damages, general New Mexico law principles allowed for the recovery of punitive damages in limited circumstances, including conduct committed with a wanton disregard of a plaintiff’s rights. The district court did, however, grant TSV’s motion to dismiss Counts III and IV, Kidd’s third party beneficiary and inherently dangerous condition claims.

In dismissing Count III, the district court concluded that the “language of the statute indicates that the legislature intended the Act as the sole remedy for skiers” and that New Mexico case law “provides persuasive authority indicating that the state courts would reject Plaintiff’s theory of liability based on a third party beneficiary cause of action.” (Appellant’s Appendix, Vol. I at 73-74). In dismissing Count IV, the district court concluded that the inherently dangerous activity doctrine “is inconsistent with the Act because it would permit the imposition of additional duties on ski operators” and that the “Act was intended to limit the [**4] duties which can be imposed upon ski area operators [and] therefore forecloses the application of the” doctrine. Id. at 75-76. Kidd’s subsequent motion for reconsideration of the dismissal of Count III was denied.

Thereafter, TSV moved for summary judgment on Kidd’s remaining claims and Kidd moved for partial summary judgment on the issue of TSV’s negligence. Following briefing, the district court entered a memorandum opinion and order granting TSV summary judgment and dismissing Kidd’s complaint with prejudice. In so doing, the district court found that: although TSV offered convincing evidence that Kidd breached her duty to ski safely, Kidd’s testimony that she was not skiing out of control created a genuine issue of material fact making summary judgment improper, (Appellant’s Appendix, Vol. II at 447); Kidd failed to produce competent evidence from which a reasonable juror could conclude that the rope closure was not in accordance with industry usage and National Ski Area Association (NSAA) standards, id. at 449; and, no reasonable juror could conclude that the closure itself created a hazard under the Act requiring TSV to warn skiers of its presence. Id. at 451.

[**5] On appeal, Kidd contends that the district court erred when it granted TSV’s motion for summary judgment, barred her from obtaining critical discovery, and dismissed her third party beneficiary claim.

Kidd contends that the district court erred when it granted summary judgment in favor of TSV. Kidd argues that summary judgment was erroneous because she presented substantial evidence that TSV breached its duties under §§ 24-15-7(I) and (C) of the Act.

[HN1] We review a district court’s grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Lancaster v. Air Line Pilots Ass’n Int’l., 76 F.3d 1509, 1516 (10th Cir. 1996). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Hagelin for President Comm. of Kan. v. Graves, 25 F.3d 956, 959 (10th Cir. 1994), cert. denied, U.S. , 115 S. Ct. 934, 130 L. Ed. 2d 880 (1995). When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the non-moving/opposing party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). [**6]

Kidd asserts that summary judgment was inappropriate because there was substantial evidence that TSV breached its duty under § 24-15-7(I) of the Act. This section provides that ” [HN2] every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Kidd argues that TSV breached this duty when it installed the single strand diversionary rope and blocked off an otherwise skiable [*852] area without giving the skier sufficient warning. The district court rejected these arguments, concluding that:

The evidence submitted by the parties in this case demonstrates as a matter of law that the TSV rope closure, by virtue of its location and purpose, cannot qualify as a hazard under the Act. The rope is located in a well-marked slow skiing zone near the base of the mountain. The closure serves to prevent, not cause, collisions between skiers returning to the base area. Moreover, the undisputed evidence shows that the rope has been in place since 1978, and [over one] million skiers have managed to ski past it without injury.

(Appellant’s Appendix, [**7] Vol. II at 447).

Kidd maintains that this conclusion was erroneous and that summary judgment improper when, as here: TSV’s expert acknowledged that a rope between two poles on a ski slope could be a hazard if a skier did not have time to react to the rope or could not see it. (Appellant’s Appendix, Vol. II at 333); the evidence was undisputed that Kidd, an experienced TSV skier did not see the rope, id. at 445-46; Kidd presented the testimony of another skier who stated that the “rope was not reasonably visible” and that “in skiing down the slope to Becky J. Kidd I did not see the rope,” id. at 309; and photographs taken immediately after the accident demonstrated the rope’s lack of visibility against the white background.

TSV responds that summary judgment was proper based on the undisputed evidence that the area of Kidd’s accident had been marked off and closed to skiing for at least twelve years without incident and its expert’s testimony that the rope did not create a hazardous situation and that the rope complied with the Act. TSV also maintains that a ski area operator’s duty to warn of or correct particular hazards or dangers under § 24-15-7(I) is limited to those [**8] hazards or dangers which are known to the operator and that Kidd failed to present any evidence that TSV knew that the rope closure was a hazard.

[HN3] Although the determination of “whether a duty [under the Act] has been breached is a question of fact,” Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648, 655 (N.M. Ct. App.), cert. denied, 113 N.M. 815, 833 P.2d 1181 (1992), the determination of “whether a duty exists is generally a question of law for the court to determine.” Id. As a matter of law, the duty imposed on ski area operators by § 24-15-7(I) “is limited to situations where the particular hazard is both known to the ski area operator and warning of or correcting the particular hazard is feasible.” Id. at 656 (emphasis original).

Applying Lopez, we hold that the district court did not err in granting TSV summary judgment on Kidd’s § 24-15-7(I) claim. Kidd failed to present any probative evidence that the diversionary rope in question was a “particular hazard . . . known to” TSV. On the contrary, the undisputed evidence was that the rope had been in place since 1978 and over one million skiers had managed to ski past it without injury. Therefore, TSV was entitled [**9] to judgment on this claim as a matter of law.

Kidd reasons that she presented substantial evidence that TSV breached its duty under § 24-15-7(C) of the act making summary judgment on this claim improper.

[HN4] Section 24-15-7(C) provides:

Every ski operator shall have the following duties with respect to the operation of a skiing area:

* * *

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .

(Emphasis added).

Kidd asserts that she presented evidence which created a triable issue on whether TSV breached its duty under § 24-15-7(C) to comply with NSAA standards when it installed a single strand diversionary rope rather than multiple ropes or other barriers. Kidd [*853] argues that the evidence included the fact that although the NSAA had no written standards for marking closures, industry practice dictated the proper use of ropes for closures; TSV’s expert on NSAA standards stated that rope closures should be [**10] as visible as possible, that multiple ropes create a more effective barrier than single ropes, and that unless there are indications to the contrary, three rope barriers should be used rather than a single rope (Appellant’s Appendix, Vol. II at 335, 340 and 343); and there was nothing to prevent TSV from using multiple ropes. Kidd maintains that this evidence created a triable issue on whether TSV complied with NSAA standards making summary judgment on this claim improper.

TSV responds that: the only issue is whether the rope closure at issue complied with NSAA standards; Kidd is attempting to divert the inquiry away from whether TSV complied with NSAA standards by focusing on what TSV could have done rather than on what it did; and its expert testimony established, without exception, that the rope closure complied with NSAA standards.

We agree with the district court’s findings that Kidd produced “only speculation, not expert testimony . . . in attempting to rebut Defendant’s submitted compliance with the Act” and that “the record [is] absent of competent evidence that the closure fell outside industry norms established by NSAA standards.” (Appellant’s Appendix, Vol. II at 450). [**11] Kidd failed to meet her burden as a nonmoving party of producing specific facts “by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves” to avoid TSV’s properly supported summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Her conclusory allegations are not sufficient to defeat TSV’s motion. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995).

II.

Kidd contends that the district court erred when it barred her from obtaining critical discovery relevant to issues raised in the summary judgment proceedings. Kidd maintains that the district court abused its discretion when it prevented her from deposing TSV employees and from designating a visual acuity expert.

Kidd states that the district court abused its discretion when it prevented her from deposing TSV employees concerning the hazardous nature of the rope. [HN5] Under Fed. R.Civ. P. 26(c), the district court may limit or bar discovery. The decision of a district court to enter a protective order under Rule 26(c) is reviewed for an abuse of discretion. Boughton v. Cotter Corp., 65 F.3d 823, 828 (10th Cir. 1995). Under this standard, “we [**12] will not disturb a trial court’s decision absent ‘a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'” Thomas v. International Business Machs., 48 F.3d 478, 482 (10th Cir. 1995)(citations omitted).

Senior TSV employees testified that patrol members had been trained concerning the use of markings and compliance with both TSV and the Act’s standards. They also testified that patrol members were instructed to insure that markings were visible. When Kidd attempted to depose ski patrol members on their training and whether the rope in question was appropriately marked, TSV filed a motion for a protective order.

Following a hearing, the magistrate judge entered a discovery order granting TSV’s motion “to the extent Defendant seeks to bar the deposition of the Chief Groomer and the Assistant Head of the Ski Patrol at this time, based upon the court’s finding that subordinate employees should not be deposed to the extent the same information may be obtained from supervisors.” (Appellant’s Appendix, Vol. I at 109).

Kidd objected to the magistrate’s order. Thereafter, the district court [**13] entered a memorandum opinion overruling Kidd’s objections, finding, inter alia:

Plaintiff next objects to Magistrate Judge Svet’s limitation of questioning as to certain non-supervisory employees. The court has reviewed the deposition testimony provided by both the Plaintiff and Defendant [*854] and fails to identify the inconsistencies claimed by the Plaintiff. In fact, Plaintiff’s assertions misstate the evidence. The clear import of all of the depositions is that the supervisory [personnel] are ultimately responsible for the marking of the trails, and that the non-supervisory patrol members have little if any discretion in deciding how trails and hazards are to be marked.

(Appellant’s Appendix at 442B-42C).

We agree. Michael Blake, TSV’s General Manager, testified that he had the “ultimate responsibility” for properly marking TSV. (Appellant’s Appendix, Vol. II at 285). Under these circumstances, we hold that the district court did not abuse its discretion in overruling Kidd’s objections to the magistrate judge’s order.

Kidd declares that the district court abused its discretion when it prevented her from designating a visual acuity expert. The decision to allow [**14] the testimony of an expert not described or listed in the pretrial order rests with the sound discretion of the district court and will not be disturbed absent an abuse of discretion. F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1556 (10th Cir. 1994).

In the initial pre-trial report, Kidd agreed to identify her liability expert witnesses by September 15, 1993. Kidd did not identify any liability expert witnesses by that date. However, Kidd retained additional counsel on January 15, 1994. On January 21, 1994, Kidd’s additional counsel filed a motion to add Freeman Hall, a visual acuity specialist and engineer, as an expert witness. The magistrate judge denied Kidd’s motion.

Following a review of Kidd’s objections to the magistrate judge’s order, the district court entered a memorandum opinion overruling Kidd’s objections, stating:

Plaintiff . . . objects to the Magistrate Judge’s refusal to permit the endorsement of an expert witness . . . . Plaintiff had sought to add an additional expert witness over four months after the deadline for designating experts had passed. Plaintiff has provided no reason for her delay, and the court can find no reason other than the recent addition [**15] of new counsel for the Plaintiff. The court therefore finds that Magistrate Judge Svet’s order denying the addition of the expert . . . is not clearly erroneous or contrary to law.

(Appellant’s Appendix at 442B).

Kidd asserts that the district court abused its discretion when it prevented her from designating a visual acuity expert who would have testified that the rope in question was not visible when, as here: the trial date had not been set; TSV would not have been prejudiced; she had been diligent, with the exception of designating the expert, in conducting her discovery; she did not appreciate the need for a visual acuity expert until she retained additional counsel; and a visual acuity expert was a critical expert who would explain to the jury what factors affected the rope’s visibility and why it could not be seen by skiers.

We hold that the district court did not abuse its discretion in refusing to allow Kidd to designate a visual acuity expert. Kidd’s request to designate an expert was made more than four months after the time period for designating such experts had lapsed. Moreover, Kidd provided no reason for her delay, save to allege that she was not aware of [**16] the need for such an expert until after she had retained additional counsel and that the expert would explain why the rope could not be seen by skiers. Neither of these assertions are sufficient to support Kidd’s claim that the district court abused its discretion, particularly in that it was undisputed that Kidd, “an experienced TSV skier, never saw the rope closure.” (Appellant’s Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445).

III.

Kidd contends that the district court erred when it dismissed her third party beneficiary claim. [HN6] We review de novo the district court’s dismissal for failure to state a claim. Seymour v. Thornton, 79 F.3d 980, 984 (10th Cir. 1996).

In Count III, Kidd alleged, inter allia:

[*855] Under the terms of the Permit between the United States and the Defendant, Defendant is to conduct the operations of the ski area, with full recognition of the need of public safety, ¹ and is to regularly inspect the ski area and correct any hazardous conditions.

1 Section “24. Safety” of the Special Use Permit between TSV and the Forest Service provided in part:

The permittee [TSV] shall conduct the operations authorized by this permit with full recognition of the need for public safety. In furtherance of this requirement, the permittee shall prepare a safety plan designed to provide adequate safety to the users of the permitted area and facilities. The plan shall have written approval of the Forest Supervisor prior to the operation of the facilities for public-use purposes. The plan shall include, but shall not be limited to, avalanche prevention and control; amount and kind of rescue equipment; conditioning of trails; and frequency of permittee inspection of area, equipment, machinery, and uphill facilities.

(Appellant’s Appendix, Vol. I at 37).

[**17] The Defendant’s maintaining and permitting the use of an unmarked Rope in the middle of the ski area constituted a breach of this lease term.

The United States . . . in granting the Defendant a right to use [its] property, required that the operation be conducted with full recognition for the need of public safety. The people of the United States, including the Plaintiff, are third-party beneficiaries of the provisions the Lease Agreement between the United States and the Defendant. The Defendant’s operation of the ski area, in violation of the needs for “Public Safety”, constitute a breach of the Agreement. Plaintiff, was a third-party beneficiary of this Lease Contract, had the right to expect the contract to be performed and therefore should be allowed to recover her damages caused by Defendant’s breach.

(Appellant’s Appendix at 5). (Emphasis added).

In dismissing Count III, the district court concluded:

The question before the court is whether the Act provides the exclusive remedy available to the Plaintiff.

* * *

The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator [**18] is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].” . . . [HN7] Under New Mexico law when the meaning of a statute is plain, it must be given effect, and there is no room for construction . . . . Here, the language of the Act is clear and unambiguous, stating that no action shall lie against a ski area operator unless the operator violates the Act and that violation is the proximate cause of the skier’s injury.

The precise question of whether a ski operator is liable to a plaintiff as a third party beneficiary has not been addressed by any appellate court in New Mexico. In Wood v. Angel Fire Ski Corp., 108 N.M. 453, 455, 774 P.2d 447 (Ct.App. 1989), the New Mexico Court of Appeals held that the Act ‘limited in part the tort liability of ski operators.’ Later, in Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648 (Ct.App. 1992), the plaintiff sued for tort damages resulting from personal injury. Again, the Court of Appeals held that the ‘provisions of the Act were intended by the legislature to exclusively control each [**19] of plaintiff’s claims herein.’

From the above cases, it is clear that [HN8] the Act is the sole remedy for an action based in tort. In regards to a contract claim, however, the above cases provide only dicta. Yet, these opinions provide persuasive authority indicating that the state courts would reject the Plaintiff’s theory of liability based on a third party beneficiary cause of action. Since the clear language of the Act must be given its plain effect, this Court concludes that a state court hearing this issue would reject the third party beneficiary theory contained in Count III.

(Appellant’s Appendix, Vol. I at 73-74).

We agree with the district court that New Mexico case law provides “persuasive authority [*856] indicating that the state courts would reject Kidd’s theory of liability based on a third party beneficiary cause of action.”

AFFIRMED.

New Mexico Skier Safety Act

Posted: January 23, 2012 | Author: Recreation Law | Filed under: New Mexico, Ski Area | Tags: Chairlift, New Mexico, Ski lift, Ski Resort, skiing | Leave a comment

New Mexico Skier Safety Act

Chapter 24. Health and Safety

Article 15. Ski Safety

Go to the New Mexico Code Archive Directory

Contents

§ 24-15-1. Short title. 1

§ 24-15-2. Purpose of act1

§ 24-15-3. Definitions. 2

§ 24-15-4. Insurance. 2

§ 24-15-5. Penalty. 3

§ 24-15-6. Provisions in lieu of others. 4

§ 24-15-7. Duties of ski area operators with respect to skiing areas. 4

§ 24-15-8. Duties of ski area operators with respect to ski lifts. 5

§ 24-15-9. Duties of passengers. 5

§ 24-15-10. Duties of the skiers. 5

§ 24-15-11. Liability of ski area operators. 7

§ 24-15-12. Liability of passengers. 7

§ 24-15-13. Liability of skiers. 7

§ 24-15-14. Limitation of actions; notice of claim.. 7

§ 24-15-1. Short title

Chapter 24, Article 15 NMSA 1978 may be cited as the “Ski Safety Act”.

§ 24-15-2. Purpose of act

A. In order to safeguard life, health, property and the welfare of this state, it is the policy of New Mexico to protect its citizens and visitors from unnecessary hazards in the operation of ski lifts and passenger aerial tramways and to require liability insurance to be carried by operators of ski lifts and tramways. The primary responsibility for the safety of operation, maintenance, repair and inspection of ski lifts and tramways rests with the operators of such devices. The primary responsibility for the safety of the individual skier while engaging in the sport of skiing rests with the skier himself. The state, through the Ski Safety Act [24-15-1 NMSA 1978], recognizes these responsibilities and duties on the part of the ski area operator and the skier.

B. It is recognized that there are inherent risks in the sport of skiing, which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator. It is the purpose of the Ski Safety Act [24-15-1 NMSA 1978] to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier or passenger expressly assumes and for which there can be no recovery.

§ 24-15-3. Definitions

As used in the Ski Safety Act [24-15-1 NMSA 1978]:

A. “ski lift” means any device operated by a ski area operator used to transport passengers by single or double reversible tramway, chair lift or gondola lift, T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow;

B. “passenger” means any person, at any time in the year, who is lawfully using a ski lift or is waiting to embark or has recently disembarked from a ski lift and is in its immediate vicinity;

C. “ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state;

D. “ski area operator” means any person, partnership, corporation or other commercial entity and its agents, officers, employees or representatives who has operational responsibility for any ski area or ski lift;

E. “skiing” means participating in the sport in which a person slides on snow, ice or a combination of snow and ice while using skis;

F. “skiing area” means all slopes, trails, terrain parks and competition areas, not including any ski lift;

G. “skier” means any person, including a person enrolled in ski school or other class for instruction, who is on skis and present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include a passenger;

H. “ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing;

I. “ski retention device” means a device designed to help prevent runaway skis; and

J. “skis” means any device used for skiing, including alpine skis, telemark skis, cross-country skis, mono-skis, snowboards, bladerunners, adaptive devices used by disabled skiers, or tubes, sleds or any other device used to accomplish the same or a similar purpose to participate in the sport of skiing.

§ 24-15-4. Insurance

A. Every operator shall file with the state corporation commission [public regulation commission] and keep on file therewith proof of financial responsibility in the form of a current insurance policy in a form approved by the commission, issued by an insurance company authorized to do business in the state, conditioned to pay, within the limits of liability herein prescribed, all final judgments for personal injury or property damage proximately caused or resulting from negligence of the operator covered thereby, as such negligence is defined and limited by the Ski Safety Act [24-15-1 NMSA 1978]. The minimum limits of liability insurance to be provided by operators shall be as follows:

SKI SAFETY ACT

Liability insurance

Limits of Liability

Required Minimum Coverage’s

For Injuries, Death or Damages

Kind and Number of Lifts Operated	Limits for Bodily Injury to or Death of Property One Person Damage	Limits for Bodily Injury to or Death of All Persons Injured or Killed in Any One Accident	Property Damage
Not more than three surface lifts	$ 100,000	$ 300,000	$ 5,000
Not more than three ski lifts, including one or more chair lifts	250,000	500,000	25,000
More than three ski lifts or one or more tramways	500,000	1,000,000	50,000.

B. No ski lift or tramway shall be operated in this state after the effective date of the Ski Safety Act [24-15-1 NMSA 1978] unless a current insurance policy as required herein is in effect and properly filed with the state corporation commission [public regulation commission]. Each policy shall contain a provision that it cannot be canceled prior to its expiration date without thirty days’ written notice of intent to cancel served by registered mail on the insured and on the commission.

§ 24-15-5. Penalty

Any operator convicted of operating a ski lift or aerial passenger tramway without having obtained and kept in force an insurance policy as required by the Ski Safety Act [24-15-1 NMSA 1978] is guilty of a misdemeanor punishable by a fine of not more than five hundred dollars ($ 500) for each day of illegal operation. The attorney general or the district attorney of the county where the ski area is located has the power to bring proceedings in the district court of the county in which the ski area is located to enjoin the operation of any ski lift or tramway being operated without a current insurance policy, in the amounts prescribed herein, being obtained and kept in force and covering the operator concerned.

§ 24-15-6. Provisions in lieu of others

Provisions of the Ski Safety Act [24-15-1 NMSA 1978] are in lieu of all other regulations, registration or licensing requirements for ski areas, ski lifts and tramways. Ski lifts and tramways shall not be construed to be common carriers within the meaning of the laws of New Mexico.

§ 24-15-7. Duties of ski area operators with respect to skiing areas

Every ski area operator shall have the following duties with respect to the operation of a skiing area:

A. to mark all snow-maintenance vehicles and to furnish such vehicles with flashing or rotating lights, which shall be in operation whenever the vehicles are working or are in movement in the skiing area;

B. to mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snow-making operations and located on ski slopes and trails;

C. to mark in a plainly visible manner the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty, using the symbols established or approved by the national ski areas association; and those slopes, trails or areas which are closed, or portions of which present an unusual obstacle or hazard, shall be marked at the top or entrance or at the point of the obstacle or hazard with the appropriate symbols as are established or approved by the national ski areas association or by the New Mexico ski area operators association;

D. to maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated in accordance with the symbols and containing a key to the symbols;

E. to designate by trail board or otherwise at the top of or entrance to the subject trail or slope which trails or slopes are open or closed;

F. to place or cause to be placed, whenever snow-maintenance vehicles or snow-making operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top or entrance of such trail or slope;

G. to provide ski patrol personnel trained in first aid, which training meets at least the requirements of the national ski patrol outdoor emergency care course, and also trained in winter rescue and toboggan handling to serve the anticipated number of injured skiers and to provide personnel trained for the evacuation of passengers from stalled aerial ski lifts. A first aid room or building shall be provided with adequate first aid supplies, and properly equipped rescue toboggans shall be made available at all reasonable times at the top of ski slopes and trails to transport injured skiers from the ski slopes and trails to the first aid room;

H. to post notice of the requirements of the Ski Safety Act [24-15-1 NMSA 1978] concerning the use of ski retention devices;

I. to warn of or correct particular hazards or dangers known to the operator where feasible to do so; and

J. to warn of snowmobiles or all-terrain vehicles (ATV’s) operated on the ski slopes or trails with at least one lighted headlamp, one lighted red tail lamp, a brake system and a fluorescent flag that is at least forty square inches and is mounted at least six feet above the bottom of the tracks or tires.

§ 24-15-8. Duties of ski area operators with respect to ski lifts

Every ski area operator shall have the duty to operate, repair and maintain all ski lifts in safe condition. The ski area operator, prior to December 1 of each year, shall certify to the state corporation commission [public regulation commission] the policy number and name of the company providing liability insurance for the ski area and the date of the ski lift inspections and the name of the person making such inspections.

§ 24-15-9. Duties of passengers

Every passenger shall have the duty to conduct himself carefully and not to:

A. board or embark upon or disembark from a ski lift except at an area designated for such purpose;

B. drop, throw or expel any object from a ski lift;

C. do any act which shall interfere with the running or operation of a ski lift;

D. use any ski lift unless the passenger has the ability to use it safely without any instruction on its use by the ski area operator or requests and receives instruction before boarding the ski lift;

E. willfully or negligently engage in any type of conduct which contributes to or causes injury to any person;

F. embark on a ski lift without the authority of the ski area operator;

G. use any ski lift without engaging such safety or restraining devices as may be provided; or

H. wear skis without properly securing ski retention devices; or

I. use a ski lift while intoxicated or under the influence of any controlled substance.

§ 24-15-10. Duties of the skiers

A. It is recognized that skiing as a recreational sport is inherently hazardous to skiers, and it is the duty of each skier to conduct himself carefully.

B. A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.

C. Responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of each individual involved in the collision, except where an employee, agent or officer of the ski area operator is personally involved in a collision while in the course and scope of his employment or where a collision resulted from any breach of duty imposed upon a ski area operator under the provisions of Sections 24-15-7 or 24-15-8 NMSA 1978. Each skier has the duty to stay clear of and avoid collisions with snow-maintenance equipment, all-terrain vehicles and snowmobiles marked in compliance with the provisions of Subsections A and J of Section 24-15-7 NMSA 1978, all other vehicles, lift towers, signs and any other structures, amenities or equipment on the ski slopes and trails or in the skiing area.

D. No person shall:

(1)place any object in the skiing area or on the uphill track of any ski lift which may cause a passenger or skier to fall;

(2)cross the track of any T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow, except at a designated location;

(3)when injured while skiing or using a ski lift or, while skiing, when involved in a collision with any skier or object in which an injury results, leave the ski area before giving his name and current address to the ski area operator, or representative or employee of the ski area operator, and the location where the injury or collision occurred and the circumstances thereof; provided, however, in the event a skier fails to give the notice required by this paragraph, a court, in determining whether or not such failure constitutes a violation of the Ski Safety Act [24-15-1 NMSA 1978], may consider the reasonableness or feasibility of giving such notice; or

(4)use a ski lift, skiing area, slopes or trails while intoxicated or under the influence of any controlled substance.

E. No skier shall fail to wear retention straps or other ski retention devices to help prevent runaway skis.

F. Any skier upon being injured shall indicate, to the ski patrol personnel offering first aid treatment or emergency removal to a first aid room, his acceptance or rejection of such services as provided by the ski area operator. If such service is not refused or if the skier is unable to indicate his acceptance or rejection of such service, the acceptance of the service is presumed to have been accepted by the skier. Such acceptance shall not constitute a waiver of any action for negligent provision of the service by the ski patrol personnel.

§ 24-15-11. Liability of ski area operators

Any ski area operator shall be liable for loss or damages caused by the failure to follow the duties set forth in Sections 24-15-7 and 24-15-8 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered, and shall continue to be subject to liability in accordance with common-law principles of vicarious liability for the willful or negligent actions of its principals, agents or employees which cause injury to a passenger, skier or other person. The ski area operator shall not be liable to any passenger or skier acting in violation of his duties as set forth in Sections 24-15-9 and 24-15-10 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-12. Liability of passengers

Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-9 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-13. Liability of skiers

Any skier shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-10 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-14. Limitation of actions; notice of claim

A. Unless a ski area operator is in violation of the Ski Safety Act [24-15-1 NMSA 1978], with respect to the skiing area and ski lifts, and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area operator by any skier or passenger or any representative of a skier or passenger. This prohibition shall not prevent the bringing of an action against a ski area operator for damages arising from injuries caused by negligent operation, maintenance or repair of the ski lift.

B. No suit or action shall be maintained against any ski area operator for injuries incurred as a result of the use of a ski lift or ski area unless the same is commenced within three years of the time of the occurrence of the injuries complained of.

Created January 9, 2012

Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the risk

Posted: January 16, 2012 | Author: Recreation Law | Filed under: Legal Case, New Jersey, Skier v. Skier | Tags: Collision, Death, Mountain Creek, New Jersey, NSAA, NSP, Ski, Skier Responsibility Code, Skier v. Skier Collision, Snowboard, Sports | Leave a comment

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542

The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.

This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)

Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”

This case

The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.

In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.

The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.

The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:

N.J.S.A. § 5:13-4. Duties of skiers

(4) Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”

If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.

The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.

Do any of those issues rise to the level that they are reckless?

In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:

….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4^th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)

Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)

A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)

…done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)

…recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500

Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:

· failed to keep a proper lookout

· made a panic stop

· turned to his left in front of decedent

In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.

The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.

1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.

2. It was created as a guideline, not a standard of care.

3. Only Montana has incorporated the code in its statute.

So Now What?

My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.

Every lawsuit based ski area land; the ski area is going to have to do things that cost money.

1. Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.

2. Employees will be deposed and attend trial; the resort is going to have to pay them to attend.

3. When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.

These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.

This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.

From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.

From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.

The industry needs to:

· Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.

· Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.

· Define the Skier Responsibility Code as help, not the standard of care.

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Safety First Mantra Highlighted At Colorado Ski Resorts

Posted: January 13, 2012 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Tags: Arapahoe Basin, Aspen Highlands, CSCUSA, National Ski Patrol, Ski, Ski Resort, skiing, Terrain park, United States Forest Service, Winter sport | 2 Comments

Safety First Mantra Highlighted At Colorado Ski Resorts

Safety Week Features Knowing the Code Giveaways, Safety Events, and Artistic Showcases

Colorado Ski Country USA (CSCUSA) and its 22 member resorts, in conjunction with the National Ski Areas Association (NSAA), have teamed up to promote National Safety Awareness Week, which begins tomorrow, January 14, and runs through January 21.

With fresh snow on the mountains from the past week, CSCUSA member resorts across the state will host events, clinics and other activities designed to educate and remind skiers and riders of the importance of slope safety. These programs, promotions and prizes motivate safe skiing and riding behavior, and highlight the Skier Responsibility Code and various resort safety measures.

“This week reinforces the value of safety that our member resorts prioritize for our consumers,” said Melanie Mills, CSCUSA president and CEO. “Guest safety is number one at our resorts and this week is an excellent chance to refresh awareness about skiing and snowboarding responsibly, which is the best way for everyone to enjoy a day on the slopes.”

For CSCUSA member resorts, every week is safety week as resorts have safety measures in place permanently during the season. Examples of how resorts raise awareness about safety include providing information about snow safety and avalanches, educating guests about helmet use, posting reminders about proper hydration and sunscreen use, and designating slow skiing zones.

Ultimately, it is the responsible behavior of skiers and riders that make the slopes safe. Knowing the nationally recognized Your Responsibility Code is crucial to skier and rider responsibility. Referred to simply as The Code, it is comprised of seven principles that collectively outline on-mountain skier etiquette and safe skiing practices.

Responsibilities within The Code include:

Always stay in control, and be able to stop or avoid other people or objects.
People ahead of you have the right of way. It is your responsibility to avoid them.
You must not stop where you obstruct a trail, or are not visible from above.
Whenever starting downhill or merging into a trail, look uphill and yield to others.
Always use devices to help prevent runaway equipment.
Observe all posted signs and warnings. Keep off closed trails and out of closed areas.
Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

Below are details about resort-specific events happening for National Safety Awareness Week:

Arapahoe Basin

Arapahoe Basin is hosting a safety weekend on January 14-15 starting at 10 a.m. The base area will be filled with booths focusing on the terrain park, ski patrol, snowsports, and more. One of the sponsors will also be giving away 100 helmets each day, along with a raffle and cake.

Copper Mountain

Copper Mountain will showcase its year-long safety efforts with Copper Safety Fest on January 14-16 in Copper’s Center Village. Along with kid-friendly signage and messaging throughout the West Village, Copper is showing off artwork created by Frisco Elementary School third-graders that focuses on the Responsibility Code and Terrain Park Safety. Copper has also teamed up with many community safety entities like the National Ski Patrol, Copper Mountain Ski Patrol and Avalanche Dogs, US Forest Service, and more to offer tips and information during its family-friendly Safety Fest.

Safety Fest will also have a Flight-For-Life helicopter fly-over on January 15, as well as Avalanche Dog drills and an open house at Ski Patrol Headquarters. There will be daily prize drawings in Burning Stones Plaza.

Copper Ski Patrol is also inviting guests to join in sweeping the mountain during Safety Fest. Each day at 4:15 p.m., Ski Patrol will sweep the trails to make sure that all guests are safely off the mountain before it closes. Guest can sign-up to follow a patroller as they clear the mountain. Spots are limited, so guests must sign up by 2 p.m. that day. For more information and to sign up, call 970.968.2318 x 66124.

Echo Mountain

Echo Mountain celebrates National Safety Awareness Week with activities on January 14-21. Activities include a kids’ poster contest, an on mountain slope-safety scavenger hunt, a stretching session, Responsibility Code trivia and prizes, a Never Summer demo day, and more. Helmet discounts of up to 10 percent will also be offered to Echo Mountain pass holders at participating stores. For more information, visit http://www.echomt.com/.

Loveland

Loveland is kicking off Safety Week on Saturday, January 14 with a visit from Neptune Mountaineering and Pieps, who will join with the Loveland Ski Patrol to give guests avalanche awareness information and beacon training. The ski area’s terrain park crew will also be giving information on the Smart Style Program. Loveland will also feature a manned booth to give information on the skier responsibility code, the importance of sun safety with help from Rocky Mountain Sun Screen, and hydration issues with support from Vitamin Water.

Steamboat

Safety Week at Steamboat will feature a variety of safety messages and activities listed below:

§ Park Rangers: The designers, testers and maintainers of Steamboat’s Terrain Parks will be in Gondola Square January 14-16 sharing the PARKWISE code.

§ Meet Patrol: The men and women who help keep the mountain safe will be onsite in Gondola Square January 14-16 to provide additional information and answer any questions guests may have about mountain safety.

§ Bear the Safety Dog: Steamboat’s Safety Mascot will be in Gondola Square January 14-16.

§ Snow Safety/Avalanche Awareness: On Saturday and Sunday, January 14 and 15, Steamboat Ski Patrol will host special seminars on snow safety and avalanche awareness. The seminars are free to the public and meet at Patrol Headquarters at the top of Sundown Express Chairlift at 1:00 p.m. both days.

§ Know the Code Contest: Skiers and Riders will randomly be stopped on the slopes by members of Steamboat’s Patrol. If they know at least three of the seven parts to the Responsibility Code they’ll receive a prize. The contest runs January 14-22.

§ Billy Kidd One O’Clock Run: This is a free clinic by Steamboat’s director of skiing, who will be joined by Patrol.

§ Free Mountain Tours: Guests c join Steamboat’s Ambassadors with SlopeWise & Safety Information from Patrol at 10:30 a.m. at the top of Vagabond Trail.

§ Free Racing: Any guests who can tell the attendant one of the seven topics of the Responsibility Code races free at the NASTAR training course.

Sunlight

The Sunlight Ski Patrol and Valley View Hospital are hosting Safety Awareness Day at Sunlight Mountain Resort on January 21. As a part of the event, $2,000 worth of helmets will be given to kids in the valley. Visit http://www.sunlightmtn.com/ for more information on the day’s events.

Winter Park

During Safety Week, employees of Winter Park will be out on the mountain, around the Winter Park Resort base and in The Village at Winter Park, sporadically wearing their “Know the Code” arm bands. Guests that talk about the Code with Winter Park employees will be entered into a drawing for a 2012-13 Winter Park Resort adult season pass. During the weekends, Winter Park Resort will have tents set up at the bases of Winter Park and Mary Jane with NSAA giveaways.

Skier/Boarder Fatalities 2011-2012 Ski Season

Posted: January 11, 2012 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Tags: Fatalities, Ski Resort, skiing, Sports, Terrain park, United States, winter sports | Leave a comment

This 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	Breckenridge	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
4	12/18	Sugar Bowl	Chair Lift		7	Expert	Skier	fell off chair lift		http://rec-law.us/viAqCR
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 | Author: Recreation Law | 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 comment

Lafond 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!

A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit.

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 | Author: Recreation Law | Filed under: Ski Area | Tags: Adventure travel, Chair Lift, Gondola, ski area, Ski Resort, Vail | Leave a comment

Loading 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 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: base, edges, Pre-season, ski season, tune up, tuning, winter sports | 1 Comment

Pre-Season Checklist:
Equipment –
When’s the last time you had your skis/snowboard tuned? If the answer is “I can’t remember” then it’s time to get your equipment in for a tune. A general rule of thumb: if you’ve ridden five times on your boards, it’s time for a tune-up. Plus, an expert wax and sharpening makes skis/snowboards last longer and provide more control for turns and stopping.

Gloves/Mittens –
If your hands are blocks of ice, you’re not going to enjoy any winter activity and your dexterity and performance is also affected. So, make sure the whole family has a pair that fits properly.

Jackets/Pants –
Does your jacket still fit? Have your kids outgrown their outerwear? Are they up to the demands of winter activities? Some kids jackets and pants have hems that can be let out to get one more year of wear. However, if you/your kids are heading out on the slopes in varying weather conditions, it’s worth it to invest in well-made, quality outerwear.

Travel/Pass/Lesson Discounts –
Fall is the time to take advantage of discounts on travel packages, lessons and lift tickets/passes. Check with your local resort and retailer or a destination resort you’ve been planning to visit to see if they’re offering any “early bird specials”.

Helmet –
Do you have one – does your kid need the next size up? For all ages of skiers/snowboarder, helmets are becoming the norm on the slopes. Not only do they protect against head injuries, but also provide warmth since up to 60% of your body’s heat can escape from an uncovered head.

Goggles –
If you can’t see where you’re headed on a mountain, you’re in big trouble. It’s amazing how much fun you can have on a mountain when glare, snow and flat light aren’t holding you back so make sure your goggles still fit properly. Check to make sure your goggles still fit and didn’t suffer too many scratches last season.

Think Snow!

SnowSports Industries America (SIA)
W snowsports.orgsiasnowshow.comsnowlink.com

Colorado Avalanche Information Center

Posted: December 24, 2011 | Author: Recreation Law | 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 comment

Want 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 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: G3, Genuine Guide Gear, Graphics | Leave a comment

Enter 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 | Author: Recreation Law | Filed under: Ski Area | Tags: Jim Moss, Recreation, Recreation Law, Recreation-Law.com, Rock climbing, Ropes course, Ski Resort | Leave a comment

An 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’s Sustainable 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 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Helmets, legislation, skiing, statute | Leave a comment

Either 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 | Author: Recreation Law | Filed under: Ski Area | Tags: snowmaking, Water Rights | Leave a comment

Rights 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 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: eco groomer, grooming, ski area, snow grooming | Leave a comment

This 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 | Author: Recreation Law | 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 comment

This 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.

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Smart Style Business Card

Posted: November 29, 2011 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Tags: Burton Snowboards, National Ski Area Association, NSAA, RespectSomeone, Skiing / Snow Boarding, Slopesyle, Smarstyle, SmartStyle | Leave a comment

Great 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.

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Forgetting your beacon is manslaughter in Europe….if you wife dies in an Avalanche

Posted: November 9, 2011 | Author: Recreation Law | Filed under: Avalanche | Leave a comment

Verdict 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.

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It’s Snowing! Register for the 2012 SIA Snow Show and On-Snow Demo

Posted: November 8, 2011 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Leave a comment

Attention Snow Sports Media:

REGISTER FOR THE 2012 SIA SNOW SHOW AND ON-SNOW DEMO/SKI-RIDE FEST

With winter showing up BIG across the country, it’s a good time to start thinking about the SIA Snow Show, Jan. 26-29, in Denver, CO and On-Snow Demo/Ski-Ride Fest, Jan. 30-31 at Winter Park Resort and Devil’s Thumb Ranch.

The Snow Show is expected to draw more than 19,000 attendees, including suppliers, retailers, reps, athletes and snow pros from across the globe. The sold-out Show will feature over 900 snow sports brands, including 94 new exhibitors, representing over 96% of the supplier market share in snow sports and 80% of the U.S. market’s buying power.

SIA has a new badge procedure this year — all media badges will be available for pick-up onsite at the Colorado Convention Center. Badges will NOT be mailed prior to the Snow Show. Badge printing kiosks will be up and running beginning January 24, 2012.

Here’s how it works:

REGISTER HERE – upon completion, a confirmation will be emailed out. Don’t forget to register for BOTH the Snow Show and On-Snow Demo
Bring registration confirmation # and photo ID to Snow Show
Print out badge at self-print kiosks in the Colorado Convention Center Lobby

And be sure to add this your calendar — SIA’s Snow Fashion & Trends Show— following DAY ONE of the Snow Show; Thursday, January 26, 2012, doors open at 6P, show starts at 6:30P. This annual event provides journalists a glimpse into next season’s hottest style trends.

Contact Anovia Daniels, SIA’s Communications and PR Manager, at ADaniels@snowsports.org with any questions about registration.

“WAKE UP BRECK” JUMP STARTS THE 50th ANNIVERSARY SKI SEASON THURSDAY, NOVEMBER 10, 2011 AT BRECKENRIDGE COFFEE SHOPS

Posted: November 6, 2011 | Author: Recreation Law | Filed under: Ski Area | Leave a comment

Free Coffee!

Set your alarms for the 9th annual Wake up Breck, 7-9 a.m., Thursday, November 10th at local coffee shops around town. The Breckenridge Ski Resort and the Town of Breckenridge invite everyone out the day before Breckenridge Ski Resort’s opening day for FREE coffee and a free 50th Anniversary Wake Up Breck re-useable coffee mug. It is also a chance for resort and community leaders to say thank you for the amazing hospitality Breck locals show guests to the community all season long.

Members of Breck’s management team and town council members will be on hand at local coffee shops in town to distribute 1,500 free mugs and free coffee. You can find them at the following shops: Starbucks; Clint’s Bakery & Coffee House; Cool River Coffee House; The Coffee Cart at City Market; Amazing Grace, Coffee Depot at Main Street Station, Daylight Donuts, Kava Café and Cuppa Joe’s. Get to Breckenridge’s local coffee shops early because everything is first come first serve.

Breckenridge’s 50th Anniversary Season Starts 11/11/11

To jump start the winter season, the mugs will be stuffed with coupons from local businesses to help locals celebrate Breck’s opening day to its 50th anniversary season.

It might seem impossible to raise the bar any higher at Breckenridge Ski Resort after a record-setting snow season during which the luxury One Ski Hill Place, A RockResort opened and amenities like the Gold Runner Coaster and 22-foot superpipe debuted making headlines across the ski industry. But the bar can go higher as Breckenridge hits 50 on opening day, Nov. 11, 2011. Breckenridge’s golden season will continue to bring signature events like the Winter Dew Tour stop in December, Ullr Fest and the International Snow Sculpture Championships in January, the new Spring Fever Festival in April, as well as the great snow and customer service you’ve come to expect at Breck. In addition, 50th anniversary celebrations, promotions and fun will abound all season long.

Stay connected 24/7 to Breck throughout their 50th anniversary season online at http://www.Breckenridge.com or socially via http://www.Facebook.com/Breckenridge or @breckenridgemtn on Twitter

See “WAKE UP BRECK” JUMP STARTS THE 50th ANNIVERSARY SKI SEASON THURSDAY, NOVEMBER 10, 2011 AT BRECKENRIDGE COFFEE SHOPS

What do you think? Leave a comment.

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Avalanche Center Newsletter #01

Posted: November 4, 2011 | Author: Recreation Law | Filed under: Avalanche, Skiing / Snow Boarding | Leave a comment

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Avalanche Institute

– Friend us

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Recurring donations: I would like to donate: 100.0050.0020.0010.005.00 every 1234 MonthsWeeksYearsDays

An Update from the Avalanche Center

http://www.avalanche-center.org/
October 26, 2011 [Previous, Apr 03 ] – [Next, ? ] – [Updates Archive Index]

Featuring:

Store Sale – 25%+ Off! (http://www.csac.org/store/2011-fall-sale.php)
Store Blog – BCA Product Line Update (http://www.csac.org/store/blog/)
Auction Dates Set (http://www.avalanche-center.org/auction/)
Recurring Contributions Possible (http://www.csac.org/Organization/contribute/)

Quick Links:

Translate: http://translate.google.com/ (Opens in new window)

Introduction, From the Director

This is our first newsletter of the season. It is relatively short, one of our goals being to send something out every 7-10 days and not have any of them be too long with accumulated news. Unfortunately it is a stretch to even run this project at all so we do not have a great track record in this regard, having resorted to infrequent and lengthy newsletters. However, once again we will try.

Halloween is rapidly approaching and few things are as scary as an avalanche. Not necessarily in every context but certainly in recreation. We have never thought much of the approach some instructors and programs use of scaring people out of having fun, but Halloween has a lighter side than that. Perhaps somebody can come up with an avalanche costume. You can take that as a challlenge, and if you come up with something post some photos on our Facebook Page!

As always, it is essential to comment on our budget situation. We don’t like having to constantly ask for donations but nobody has found a magic alternative to this. Which is why you endure radiothons for community radio and television and receive direct mail requests. It does seem that these things work, even in difficult times. A number of recent radiothons announced record breaking results and in the US a couple of the Forest Service operations have held record breaking fundraisers. We can’t do quite the same things but please consider supporting this non-profit project. Even a small automatic monthly contribution can make a bit difference and there is more on this option below.

While this first newsletter will not dwell on our budget the final details for last season (ending September 30) are available on the website. Some links need to be updated to go to this most recent information but it can be found in the “About Us” section.

Store Sale – 25% or more off!

There isn’t any need to write much about this, except that all the details are on the website store and that it ends on November 6. Any order which includes at least one beacon is eligible for 25% off, just contact us after ordering and let us know where you heard about the sale and we will refund the 25%. If you mention our Facebook Page and have Liked it we will give you 30% off!

Another way to get 30% off any order right now is to log in as a member. If you do that the shopping cart will automatically deduct 30% whether or not the order includes a beacon.

We found, through a customer report, that our shopping cart had some problems. We think everything is fixed now and the customer was able to order successfully, but if you encounter any problems in the store let us know so we can check them out and fix things. We only know there is a problem if it gets reported for the most part.

Purchasing gear through our store means supporting our non-profit safety related work rather than contributing to the profits of a business. And it doesn’t cost any more, we’ll even match anyones pricing. The sale pricing actually has more to do with helping our early season cash flow than making anything.

Store Blog – Backcountry Access Product Line Update

We will use the store blog to cover changes for this season in the various product lines we carry. There is still quite a bit of updating to do but we have completed the BCA line. The blog describes what is new, what is changed, and any other information about this seasons products.

Auction

There will be a fundraising auction again this season. How successful it is will depend on how much support we get from industry and how many people participate in the bidding. We recently sent out an initial fax seeking product donations but for the most part it is still early to have any news on results.

We did get one initial response rather quickly and are happy to announce that Revolution Snowboards is donating a custom board! They are the first ones to contribute something this year, and it is the first auction they have supported. Hopefully there will be some other industry supporters following suit.

The actual auction dates will be Dec 7th to Dec 15th. We will be making more announcements and updating the auction page between now and the event.

Recurring Contributions

We finally have recurring contributions set up! You can choose an amount and an interval and the appropriate contribution will be made each month (or week, or whatever). This is an easy and effective way to support the avalanche center. A monthly contribution of $10 is very significant over the course of a year, yet less than many people spend on coffee in a week or beer in an evening.

This method of donating to the avalanche center is available on the home page as well as the Contribute! page.

Recurring donations help keep us going all year. One reason for the big fall sale is that we hope to generate some cash flow. There are basic operating expenses all year yet very little income in late spring through fall. It is November or December before contributions and store sales pick up and the auction occurs. Your recurring contribution, even if it’s very modest, will be a big help in the slower parts of the year.

Another way to make contributions, including recurring ones, is through the American Express Just Give program. AmEx administers that and sends any donations on to us. It may offer some advantages if you are an active AmEx customer.

Social Media

Be sure to look for us and follow us on Facebook and other sites. We have a Facebook Profile with about 1200 friends and a Facebook Page with just over 50 followers. Obviously we need to promote the page more, and it is likely to have more useful information during the season than the profile. Be sure to be a friend of the Avalanche Center and to Like our page. We are also on Twitter.

Facebook has made changes which result in their deciding what you want to see. Some things are provided with a lot of visibility while others are buried. The user has much less choice in the matter than they used to. We were using Networked Blogs to post blog updates to Facebook but in addition to having major problems of its own Facebook has decided not to include anything at all from that app on news feeds. You can help us get our posts out most effectively by liking them, commenting on them, and sharing them. And “retweeting” them in the case of Twitter.

Also, have you suggested our profile or page to any of your friends?

Remember:

Contribute and join: http://www.avalanche-center.org/Organization/contribute/
Buy your equipment here: http://www.avalanche-center.org/store/
Be a Facebook Friend : http://www.facebook.com/avalanche.center
Like our Facebook Page : http://www.facebook.com/pages/Avalanche-Center/26051450867
Use the Goodshop Toolbar !

This has been an early season update as we try to get things underway. We do have more to include that is on hold for next time, such as a 2010-11 incident overview, additional product line updates, educational information and resources, and more. For now please consider contributing if you can, spread the word about the fall sale, and help us out on the social media front. Your support in any of these ways is appreciated and helps make out work possible and effective.

Jim Frankenfield
Executive Director

Avalanche
Center

Avalanche
Institute

Store and
Auction

Forums and
Gallery

Our mailing address is:

Avalanche Center

3939 S 6th St 172

Klamath Falls, Oregon 97603

If you live in the area covered by CSAC JOIN and DONATE Now!

The very first lawsuit against a ski area

Posted: October 24, 2011 | Author: Recreation Law | Filed under: Ski Area, Skiing / Snow Boarding | Leave a comment

Wright 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 | Author: Recreation Law | 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 comment

Wright 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 5^th 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 5^th Avenue Cut-off, down the 5^th Avenue Cut-off to the Skimeister trail, down the Skimeister trail to the top of the T-bar and [**9] the open slopes. The 5^th 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 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Leave a comment

Winter 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 | Author: Recreation Law | Filed under: New Jersey, Ski Area | Tags: Adventure travel, New Jersey, Outdoor recreation, Rock climbing, Ropes course, Ski Resort, summer camp | Leave a comment

Neustadter 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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It's not what I write, It's what you Learn

Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see

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Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

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§ 24-15-1. Short title

§ 24-15-2. Purpose of act

§ 24-15-3. Definitions

§ 24-15-4. Insurance

SKI SAFETY ACT

§ 24-15-5. Penalty

§ 24-15-6. Provisions in lieu of others

§ 24-15-7. Duties of ski area operators with respect to skiing areas

§ 24-15-8. Duties of ski area operators with respect to ski lifts

§ 24-15-9. Duties of passengers

§ 24-15-10. Duties of the skiers

§ 24-15-11. Liability of ski area operators

§ 24-15-12. Liability of passengers

§ 24-15-13. Liability of skiers

§ 24-15-14. Limitation of actions; notice of claim

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The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.

This case

Do any of those issues rise to the level that they are reckless?

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Safety First Mantra Highlighted At Colorado Ski Resorts

Safety Week Features Knowing the Code Giveaways, Safety Events, and Artistic Showcases

Colorado Ski Country USA (CSCUSA) and its 22 member resorts, in conjunction with the National Ski Areas Association (NSAA), have teamed up to promote National Safety Awareness Week, which begins tomorrow, January 14, and runs through January 21.

Responsibilities within The Code include:

Always stay in control, and be able to stop or avoid other people or objects.

People ahead of you have the right of way. It is your responsibility to avoid them.

You must not stop where you obstruct a trail, or are not visible from above.

Whenever starting downhill or merging into a trail, look uphill and yield to others.

Always use devices to help prevent runaway equipment.

Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

Below are details about resort-specific events happening for National Safety Awareness Week:

Arapahoe Basin is hosting a safety weekend on January 14-15 starting at 10 a.m. The base area will be filled with booths focusing on the terrain park, ski patrol, snowsports, and more. One of the sponsors will also be giving away 100 helmets each day, along with a raffle and cake.

Copper Mountain

Safety Fest will also have a Flight-For-Life helicopter fly-over on January 15, as well as Avalanche Dog drills and an open house at Ski Patrol Headquarters. There will be daily prize drawings in Burning Stones Plaza.

Echo Mountain

Loveland

Steamboat

Safety Week at Steamboat will feature a variety of safety messages and activities listed below:

§ Park Rangers: The designers, testers and maintainers of Steamboat’s Terrain Parks will be in Gondola Square January 14-16 sharing the PARKWISE code.

§ Meet Patrol: The men and women who help keep the mountain safe will be onsite in Gondola Square January 14-16 to provide additional information and answer any questions guests may have about mountain safety.

§ Bear the Safety Dog: Steamboat’s Safety Mascot will be in Gondola Square January 14-16.

§ Snow Safety/Avalanche Awareness: On Saturday and Sunday, January 14 and 15, Steamboat Ski Patrol will host special seminars on snow safety and avalanche awareness. The seminars are free to the public and meet at Patrol Headquarters at the top of Sundown Express Chairlift at 1:00 p.m. both days.

§ Know the Code Contest: Skiers and Riders will randomly be stopped on the slopes by members of Steamboat’s Patrol. If they know at least three of the seven parts to the Responsibility Code they’ll receive a prize. The contest runs January 14-22.

§ Billy Kidd One O’Clock Run: This is a free clinic by Steamboat’s director of skiing, who will be joined by Patrol.

§ Free Mountain Tours: Guests c join Steamboat’s Ambassadors with SlopeWise & Safety Information from Patrol at 10:30 a.m. at the top of Vagabond Trail.

§ Free Racing: Any guests who can tell the attendant one of the seven topics of the Responsibility Code races free at the NASTAR training course.

Sunlight

The Sunlight Ski Patrol and Valley View Hospital are hosting Safety Awareness Day at Sunlight Mountain Resort on January 21. As a part of the event, $2,000 worth of helmets will be given to kids in the valley. Visit http://www.sunlightmtn.com/ for more information on the day’s events.

Winter Park

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Although not a Precedent setting decision, it is indicative of where the courts are going.

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For more cases on Jurisdiction and Venue see:

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Loading other lifts with backpack and laptop should get exciting…..

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