Neustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Posted: October 16, 2011 Filed under: Assumption of the Risk, Legal Case, New Jersey, Ski Area, Skiing / Snow Boarding | Tags: additionally, Assumption of risk, case-in-chief, correctly, essential element, expert testimony, failed to present, fence post, fencing, Hazard, hazardous, inflexible, involuntary dismissal, legitimate inferences, man-made, photographs, pole, practicable, reasonable time, reconstructed, Ski, ski area, Ski Resort, Skier, skiing, Slope, Snow, Snowboarders, sufficient evidence, Trail Leave a commentNeustadter v. Mountain Creek Resort, Inc., 2008 N.J. Super. Unpub. LEXIS 1584
Mark Neustadter and Katherine Neustadter, Plaintiffs-Appellants, v. Mountain Creek Resort, Inc., Defendant-Respondent.
DOCKET NO. A-5671-05T5
Superior Court of New Jersey, Appellate Division
2008 N.J. Super. Unpub. LEXIS 1584
September 11, 2007, Argued
February 15, 2008, Decided
NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Certification denied by Neustadter v. Mountain Creek Resort, 195 N.J. 521, 950 A.2d 907, 2008 N.J. LEXIS 721 (2008)
PRIOR HISTORY: [*1]
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-670-03.
CORE TERMS: pole, man-made, hazard, ski, skier, trail, sufficient evidence, involuntary dismissal, expert testimony, failed to present, fence post, fencing, slope, ski resort, assumption of risk, photographs, correctly, hazardous, skiing, snow, reconstructed, snowboarders, ski area, reasonable time, legitimate inferences, essential element, case-in-chief, additionally, practicable, inflexible
COUNSEL: John R. Lanza argued the cause for the appellants (Lanza & Lanza, LLP, attorneys; John R. Lanza, of counsel; Mr. Lanza and Kenneth W. Thomas, on the brief).
Samuel J. McNulty argued the cause for the respondent (Hueston McNulty, attorneys; Mr. McNulty, of counsel and on the brief).
JUDGES: Before Judges Skillman, Yannotti and LeWinn.
OPINION
PER CURIAM
Plaintiffs, husband and wife, appeal from the trial court’s grant of an involuntary dismissal at the end of their case seeking damages for injuries allegedly sustained by plaintiff-husband, Mark Neustadter (hereinafter “plaintiff”), in an accident on defendant’s premises, a ski resort.
On January 7, 2002, plaintiff, an acknowledged snowboarding expert, was injured while snowboarding at defendant’s resort when he collided with a post supporting orange netting on the slope. The gravamen of his negligence claim was that the post was so deeply embedded in snow, and of such an inflexible material, that it was immovable and took the full force of his body, resulting in a shattered knee.
At the conclusion of plaintiff’s case, the trial judge determined that plaintiff had not presented [*2] sufficient evidence to allow the jury reasonably to find liability on defendant’s part. The judge also concluded that plaintiff had failed to adduce any evidence to show the injury in question was caused by the collision with the identified fence post. Accordingly, the judge dismissed the complaint.
Plaintiff raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ [SIC] MOTION FOR AN INVOLUNTARY DISMISSAL PURSUANT TO R. 4:37-2(b)
A. AS TO THE MEDICAL EXPERT, DR. WEISS
B. AS TO THE LIABILITY EXPERT, MR. HANST
1. THE PHOTOGRAPHS
2. THE ALLEGED NET OPINION
POINT II: THE TRIAL COURT IMPROPERLY LIMITED THE EXPERT TESTIMONY OF DR. WEISS AND MR. HANST
POINT III: THE TRIAL COURT ERRED BY PERMITTING DEFENDANT TO CROSS-EXAMINE PLAINTIFF’S EXPERT WITH A DOCUMENT IT FAILED TO PRODUCE IN DISCOVERY
POINT IV: THE TRIAL COURT IMPROPERLY EXCLUDED THE INTRODUCTION OF PLAINTIFF’S MEDICAL BILLS INTO EVIDENCE
POINT V: THE TRIAL COURT SHOULD NOT HAVE PERMITTED DEFENDANT TO NAME A MEDICAL EXPERT AFTER THE CONCLUSION OF THE ARBITRATION
Having thoroughly reviewed the trial record, we are convinced the judge properly limited the testimony of plaintiff’s liability expert and correctly [*3] concluded that plaintiff had not presented sufficient evidence to allow the jury reasonably to find liability on defendant’s part. This conclusion makes it unnecessary to reach the other issues raised on appeal.
In his complaint, plaintiff claimed defendant “negligently, carelessly, and/or recklessly designed, constructed, supervised, operated and/or maintained the premises so as to create and/or allow a dangerous and hazardous condition to exist.” He set forth the “particulars” of defendant’s negligence as follows:
a) Defendant knew, or in the exercise of reasonable care should have known, that the unprotected pole was dangerous, and Defendant failed to warn Plaintiff of that condition;
b) Defendant failed to cover the pole with a material in order to protect Plaintiff from being injured should Plaintiff come into contact with the pole;
c) Defendant knew, or should have known, that the pole, if left open and exposed was likely to be dangerous to ski[ers] and snowboarders, and with such knowledge Defendant failed to cover the pole or use any other means to keep it safe for its business invitees;
d) Defendant failed to cover the pole with a protective covering for the protection of skiers [*4] and snowboarders; and
e) Defendant permitted the pole to be left unprotected and defective and dangerous knowing that the pole would necessarily pose a risk of harm to Plaintiff and other business invitees, skiers, and snowboarders.
Plaintiff proffered John H. Hanst as his liability expert. Hanst rendered a report on May 21, 2005. Other than his review of documents, Hanst’s opinions were based solely upon his one and only site visit to the ski resort on March 24, 2005, more than three years after plaintiff’s accident.
During that site visit Hanst “reconstructed” the accident with plaintiff and described the reconstruction in his report as follows: “We walked up the trail to the area where the incident occurred. The area was modestly changed. . . . A few of the fence posts have been covered with padding although the majority of them were not padded.” (Emphasis added). Hanst included photographs of the reconstructed accident scene in his report.
Defendant challenged Hanst’s report and testimony in an in limine motion. Defendant contended that Hanst described “conditions that were not those described by the Plaintiff. . . . H[is report] talk[ed] about a condition that did not exist and [wa]s [*5] not relevant or material to the case that w[ould] be before th[e] Court.”
In ruling on that motion, the trial judge found that Hanst’s report described conditions that were not in existence “on the date of [plaintiff’s] . . . accident. . . . They were at a [much later] time . . . when the conditions on the slope were not the same. Nobody can say they were the same.” (Emphasis added).
The judge limited Hanst’s testimony to “what conditions should exist on a ski slope and how the conditions on the day in question deviated, based upon the testimony of Mr. Neustadter.” The judge also ruled Hanst’s photographs of the reconstructed accident scene inadmissible because they “specifically show poles that are different from those that are described by Mr. Neustadter as existing in the area where he was injured on the day in question.” In the course of his ruling, the judge noted that Hanst’s report did not address plaintiff’s claim that “the poles had been in the snow too long and ice had formed around them and possibly they didn’t flex the way they should.”
At trial, plaintiff testified that he swerved to avoid a cluster of skiers ahead of him. This caused him to collide with a PVC pole, one to [*6] two inches in diameter, that was supporting orange mesh fencing erected to distinguish the expert trail from the novice trail.
At the conclusion of Hanst’s voir dire, the judge limited his qualification as an expert to the area of alpine skiing, and excluded him from giving expert testimony on the subject of “mountain management” since he had no experience in that field. The sum total of Hanst’s liability testimony was that a rigid pole was a “man-made hazard,” and the ski operator had an obligation to reduce or eliminate that hazard.
After plaintiff had completed presentation of his case-in-chief, defendant moved for involuntary dismissal of the complaint pursuant to Rule 4:37-2(b). The judge granted the motion finding that plaintiff failed to present sufficient evidence to establish liability under the Ski Statute, N.J.S.A. 5:13-1 to -11. The judge additionally found that plaintiff failed to present sufficient evidence to show that any negligence on the part of defendant was a proximate cause of his injury. On June 23, 2006, the judge entered an order memorializing his findings. This appeal followed.
Plaintiff argues that the judge erred by granting defendant’s motion for involuntary [*7] dismissal of their complaint. He maintains that defendant had a duty under the Ski Statute to remove any “obvious man-made hazard” from the premises. Plaintiff contends that he presented evidence showing that he struck a man-made fence pole. He contends further that, because his evidence showed that the post was rigid, thereby constituting a “hazard,” the jury should have been permitted to determine whether defendant failed to discharge its duty to remove the pole. We disagree.
Rule 4:37-2(b) provides that, upon completion of a plaintiff’s case-in-chief,
the defendant . . . may move for dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. . . . [S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor.
In other words, dismissal is appropriate where the court determines that no rational jury could conclude from the evidence that an essential element of plaintiff’s case is present. “The trial court is not concerned with the worth, nature or extent . . . of the evidence, but only with its existence, viewed most favorably to [*8] the party opposing the motion.” Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). Where, as here, plaintiff failed to adduce expert testimony on the essential element of liability, such failure will warrant dismissal of his personal injury action.
The Ski Statute clearly defines the respective liabilities of skiers and ski operators, and sets forth the duties of both and the assumption of risk borne by skiers. N.J.S.A. 5:13-1 to -5. The statute states that a skier’s assumption of risk under N.J.S.A. 5:13-5 bars recovery for injuries sustained due to “the inherent risks of skiing . . . created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions.” N.J.S.A. 5:13-6 states that a skier’s assumption of risk:
shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a skier for injuries resulting from the assumed risks, . . . unless an operator has violated his duties or responsibilities under this act, in which case the provisions of [comparative negligence] shall apply.
The Ski Statute imposes upon the ski operator a duty to “[r]emove as soon as practicable obvious, man-made hazards.” N.J.S.A. 5:13-3(a)(3). [*9] However, the statute expressly exempts a ski operator from liability for its failure to remove man-made hazards such as fencing or poles which are necessary for the normal operation of a ski resort, as follows:
No operator shall be responsible to any skier or other person because of its failure to [remove obvious man-made hazards] if such failure was caused by . . . the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type, racing poles, or any other object or piece of equipment utilized in connection with the maintenance of trails . . . used in connection with skiing.
[N.J.S.A. 5:13-3(b)(3) (emphasis added).]
In addition, a ski operator shall not be held liable for failure to remove obvious, man-made hazards unless the operator “has knowledge of the failure to [remove man-made hazards]” or “should have reasonably known of such condition and having such knowledge has had a reasonable time in which to correct [the] condition.” N.J.S.A. 5:13-3(d).
Plaintiff failed to present any evidence to support his allegations that the fence post was an obvious, man-made hazard; or that defendant had actual or constructive [*10] knowledge of an obvious, man-made hazard relating to plaintiff’s injuries; or that defendant failed to remove such a hazard within a reasonable time. Therefore, the trial judge correctly found that plaintiff failed to present sufficient evidence from which a jury could reasonably find that defendant failed to meet its duty under N.J.S.A. 5:13-3(a)(3) to “[r]emove as soon as practicable obvious, man-made hazards.” As the trial judge recognized, liability may not be imposed under the Ski Statute if a ski operator’s failure to comply with N.J.S.A. 5:13-3(a)(3) was caused by the “location of man-made facilities” that are “necessary for the ordinary operation of the ski area[.]”
In his decision on the record, the judge aptly observed that there was nothing inappropriate about the placement of the fence posts delineating the expert trail and the novice trail; and it was plaintiff’s burden to show, through expert testimony, that something had happened to the poles after their installation which rendered them hazardous and not “necessary for the ordinary operation” of the facility. The judge properly determined that plaintiff had not met his burden in this regard. Moreover, the judge rightly [*11] found that plaintiff had not presented any evidence to show that defendant was aware, or reasonably should have been aware, that the poles had become hazardous for a reasonable period of time in which to address that condition. Therefore, the judge correctly determined that the evidence presented by plaintiff, and the “legitimate inferences” that could be drawn from that evidence, were insufficient to “sustain a judgment in plaintiff’s favor.” R. 4:37-2(b).
Plaintiff additionally argues that the judge erred by limiting Hanst’s testimony at trial. Again, we disagree. A trial judge has the discretion to determine whether an expert is competent to testify. Carey v. Lovett, 132 N.J. 44, 64, 622 A.2d 1279 (1993). As we stated previously, the judge barred Hanst from testifying concerning the fencing on defendant’s premises because Hanst’s opinions were not based on the conditions that existed at the time plaintiff was injured. At trial, the judge also precluded Hanst from testifying that defendant should have had special “break away poles” and refused to permit Hanst to speculate as to whether weather conditions that might have existed at the time of the accident caused the PVC poles to become inflexible. [*12] None of those issues had been addressed in Hanst’s report. We are convinced that the judge did not abuse his discretion by limiting Hanst’s testimony.
Affirmed.
CAIC BENEFIT BASH
Posted: October 14, 2011 Filed under: Avalanche Leave a commentNovember 12th, 2011
Presented by:
Backcountry Access, La Sportiva, Voile, Vail Resorts, New Belgium Brewing Company
Featuring: Green River Vibe
The Friends of CAIC is proud to announce the 4th Annual CAIC Benefit Bash! This year is shaping up to be the best party we have thrown yet. Last year was a blast and sold out in under an hour. We hosted 1500 people and raised just over $45000 for the CAIC.
This year we expect much of the same; A sell out crowd, a kick ass band, tons of gear, a massive silent auction, a plethora of food, great New Belgium beer, and a massive effort to raise $50k to go toward avalanche forecasting and education in Colorado!
The Details:
When: November 12, 2011
Time: 5pm-10pm and then of course an after party with some dance lessons
Where: The Breckenridge Riverwalk Center
Tickets are available HERE. WE WILL SELL OUT SO GET THEM EARLY!
Discount Hotel Rooms are available at the Village Hotel: Please call Breckenridge Hospitality Reservations Department at (888)-525-1787 and ask for group code BC1CAI
Sponsors:
BCA
Vail Resorts
Voile USA
La Sportiva
Aspen Skiing Company
Mountain Khakis
REI
Epic Quest
Vail Racquet Club
Smith Optics
Babes in the Backcountry
Venture Snowboards
Ski and Snowboard Journal
Mammut
Freeride Systems/Prospect Pant Co.
Friends of Berthoud Pass
Unity Snowboards
Scarpa
Gatherhouse Studios
Rab USA
Woodwinds Property Management
Wildernest Lodging
Monarch Mountain
Powder Addiction
Alpine Quest Sports
KKVM The Mile
Summit Ford
Alta
Orage
Line Skis
Hestra
Eider
The Sleep Shop
MFD ALL TIME
Steamboat Powdercats
FlyLow
Nightmare Snowboards
Melanzana
Wilderness Exchange Unlimited
Summit Huts
Abbie Groves Artwork
Mountainsmith
Krystal 93
Black Diamond
Mountain Buzz
Patagonia
Alpine World Ascents
Mountain Haus Lodge
Fortitude Skis
Backcountry.com
Billabong
Kling Mountain Guides
American Rec
Slope Style
Cuppa Joe Breckenridge
Hearthstone
Silverton
Avalanche Mapping
TGR!
Alaska Heli Skiing
Mountain Outfitters
Fatypus Skis
Icelantic Skis
Salomon Skis
NRC Broadcasting
Summit Foundation
Ortovox
Woodward at Copper
The Big Hit
AMR
Minturn Anglers
Guiry’s Color Source
Loveland Ski Area
Copper Mountain
Christy Sports
Powder Tools
Vail Mountain Coffee
Wilderness Sports
Ski Logik
Summit County Rescue Group
Specialized Stump Removal
Rocky Mountain Guides
Kayak Lake Dillon
Ten Mile Café
First Ascent Mountain School
Larry’s Boot Fitting
Vail Powder Guides
San Juan Snow Cat Tours
Rack Attack
Green Mountain Sports
Confluence Kayaks
Billy’s Inn
Rise and Shine Biscuit Café
Sports Optical
Food Sponsors:
Kenosha
Giampietros
Downstairs at Erics
Relish
Mi Casa
North Side Pizza
Michael’s
Taddeos
Fatty’s
A Café
Twist
Harvest Catering
This is going to be so much fun!
Do Something
What do you think? Leave a comment.
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It’s time to sign up to get the CAIC Avalanche Forecasts
Posted: October 13, 2011 Filed under: Avalanche Leave a comment
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Colorado Resorts invest millions in everything from terrain parks to parking
Posted: October 11, 2011 Filed under: Ski Area Leave a commentDenver, Colo. – August 30, 2011 – Colorado Ski Country USA (CSCUSA) resorts show continuing dedication to maintaining the highest standard in ski vacations with preparations and investments for the 2011/12 season. From minor developments that will seamlessly improve guest experiences, to major renovations that will allow resorts to continue to provide the excellent service to which guests have become accustomed, resorts have devoted more than $50 million to new projects for the upcoming season.
According to National Ski Areas Association, the United States had more skier visits in 2010/11 than any previous ski season in history, surpassing the 60 million mark. Colorado resorts accounted for more of these visits than any other state in the nation with more than one in five skiers choosing to ski at a Colorado resort.
“Without question, Colorado Ski Country’s resort facilities allow the state to provide the absolute finest ski vacation experience available,” said Melanie Mills, president and CEO of CSCUSA. “Colorado has always set the standard with advanced improvements from high-tech lifts and ticketing systems, to state-of-the-art terrain parks and on-mountain amenities.”
Below is a roundup of what’s new in Colorado Ski Country for the upcoming season. The energy and capital spent by resorts on infrastructure includes improvements that will impact all ages and abilities, and are either winter specific or year-round.
New Lifts
Aspen/Snowmass’s Buttermilk Mountain will have a new lift and gladed terrain this season. The new Tiehack Express lift, a Leitner Poma high-speed quad, will replace both the Eagle Hill and the Upper Tiehack lifts, cutting the combined ride time from 18 minutes to just under seven minutes. New construction has already begun on the project, and a complete installation is expected for the resort’s December 2011 opening. In addition to the new lift, there will be some additional gladed terrain in the area.
Copper Mountain is replacing the High Point Lift in West Village (formerly Union Creek) with a new lift that will provide improved service for all levels of skiing and riding ability. The Union Creek High Speed Quad, manufactured by Doppelmayr USA, will have a new alignment to help improve skier and rider circulation in and out of West Village. In conjunction with the new lift, the addition of a new trail connection from the east will make the circulation much easier from the Catalyst Terrain Park and the beginner and intermediate terrain in the area.
A new lift will reside at Loveland as that resort replaces Chair 4 with a new fixed grip triple from Leitner Poma, while Monarch’s renovations for next season will also include a new lift. A 450 ft. long conveyor lift on Snowflake is being installed in time for the resort’s opening.
For the upcoming season, Ski Cooper is installing a 770 ft. Magic Carpet to replace the Printer Boy Platter. This sizable improvement will be at the base area of the mountain, in the ski school and beginner skier and rider area.
Terrain Park Improvements
Some of the most creative accelerations of the off-season are taking place in the terrain parks of Colorado Ski Country. SolVista Basin at Granby Ranch is adding a number of new features to its terrain park for the upcoming year, including an underground gas tank, a six-foot tall satellite dish and log jibs. Leading the improvements in SolVista’s terrain parks is Ted’s Secret Stash, an all natural log park off the Jackalope run; and Progression Park, a beginner terrain park at the base area; and the newest feature The Tank, a former underground fuel tank that is eight feet in diameter, 30 feet long, and boasts a quarter-pipe on each end.
Another resort with new terrain park features is Echo Mountain. Echo has continued to improve its trails and park features for the 2011/12 season and is making its trails larger and the park more challenging.
Rounding off terrain park improvements, Winter Park’s Rail Yard Terrain Park’s Super Pipe “Dig-In” will be completed during the early season, which will result in the Half Pipe being opened by Christmas and will see a reduction of water and energy by using less manmade snow. The progressive terrain park system will also see another boost of new features this coming season.
Guest Activities
Guests can now add zip-lining to the menu of activities at CSCUSA resorts. New and open for the season at Crested Butte Mountain Resort (CBMR), is a Zip-Line Canopy Tour. This major addition to CBMR resort amenities will be open year-round, enabling guests to ski to it during the winter months.
In addition to Crested Butte’s zip-line, the Purgatory Plunge Zip-Line at Purgatory at Durango Mountain Resort opened in the off-season and will also be open year-round. The Purgatory Plunge gives guests the opportunity to soar from the Purgatory Village Tower over the ski beach at speeds of approximately 35 mph.
Monarch Mountain is expanding their fleet of touring snowcats with the purchase of a new one for the 2011/12 season. This new snowcat has the capacity to comfortably fit 14 skiers and riders in the cabin.
The Vista Ridge Ceremony Site was completed this summer at SolVista Basin at Granby Ranch. A scenic wedding site that overlooks the Continental Divide, Vista Ridge has a 360 degree view of the peaks of Rocky Mountain National Park. The mountaintop venue is accessed by chairlift, located adjacent to an aspen grove, and offers full ski-down capabilities for those looking to participate in winter nuptials.
Wolf Creek is building a new race hut to replace the one under the Raven Lift. Participants in the resort’s popular Fun Race Series will enjoy the benefits of an upgraded facility to house the race equipment, announce times, and serve as the official finish line for the races.
Dining Facilities
At Aspen/Snowmass, Aspen Skiing Company (ASC) is beginning construction on a new Elk Camp Restaurant. The new restaurant, expected to be open in 2012/13, will replace Café Suzanne and will be located adjacent to the top of the Elk Camp Gondola at Snowmass. The Elk Camp Restaurant will provide seating for up to 300 guests and include summer and evening event space. The project is scheduled to be LEED Certified and to implement advanced heating systems with other green materials to beat local energy codes by an estimated 30 percent. Elk Camp will be ASC’s fifth LEED certified building, following closely on the heels of Sam’s Restaurant (Gold) and Holiday House (Platinum).
Also at Aspen/Snowmass, The Merry-Go-Round restaurant, situated mid-mountain at Aspen Highlands, is undergoing a major remodel to make the building more energy efficient as well as enhance guest comfort and food quality. The reopening is scheduled for opening day of Aspen Highlands on December 10, 2011.
At Crested Butte, renovations to the Paradise Warming House, the mid-mountain cafeteria style culinary facility, are underway. The resort is redesigning the food line, creating new signage and giving the facility an overall updated look that will further enhance the guest experience.
Restroom improvements have been underway at Ski Cooper, as the resort is installing a vaulted toilet at the bottom of the Piney Basin Triple Chair. Wolf Creek on the other hand, has renovations underway for Treasure Lift’s water free, composting restrooms in preparation for next season. This structure also houses a coffee café, offering homemade pastries, coffee and teas throughout the day.
In Steamboat, the resort is creating a new bar, located in the Cabin Restaurant at the Steamboat Grand. The newest après ski hot spot just across from the Gondola Square base area, it has a unique menu featuring Kennebec Chips with Sriracha Aioli, the Deconstructed BLT (pork belly, tomato jam and arugula, charred on a cedar plank), and Buffalo Carpaccio.
Snowmaking/Grooming
Copper Mountain will enter 2011/12 in partnership with the U.S. Ski and Snowboard Association (U.S.S.A.) to develop an on-snow training center at the resort. To support and develop the U.S. Ski Team Speed Center at Copper, the resort is implementing a new automated snowmaking system, as well as safety, communications and timing equipment necessary to develop a unique training venue. The on-snow training center will operate from November 1 – December 10 each winter season, and will bolster the U.S. Teams’ ability to train for speed events before the competitive season begins.
On-mountain improvements continue at Crested Butte as the resort is enhancing its kids’ trails. These are trails that ski instructors bring their students through that add excitement to the lesson, whether it’s winding through trees, over humps and other terrain, or going around obstacles. The trails have become extremely popular with younger guests and also correlate to Crested Butte’s Kids Trail Map.
Winter Park is also enhancing its beginner trails. Beginners will now have an easier trail to the Village at Winter Park with the opening of the new Sorensen Trail Bypass.
Loveland is adding snowmaking capabilities to Twist at Loveland Valley and Firecut at Loveland Basin, which will expand the resort’s early and late season race training opportunities.
Eldora Mountain Resort has invested heavily in upgrading its snowmaking system which will enrich the on- snow experience in the upcoming season.
Purgatory at Durango Mountain Resort is upgrading its expert terrain via a winch-cat that will provide high-angle grooming. Some expert trails will be groomed or partially groomed using this technique, which will provide a great experience for expert skill level skiers and riders.
Wolf Creek’s grooming fleet of snowcats has a new addition this season, bringing one of the first Finnish snowcats to the US, the Formatic. This heavy equipment is used to smooth terrain and help pack down the powder during storm cycles.
Continuing to improve the versatility to its slopes, Steamboat Resort will be upgraded its snowmaking, while also adding a new snowcat to its slope grooming fleet.
Winter Park is also adding a new snowcat for superior groomed runs. Other capital at the resort has been re-invested into improving existing infrastructure and services.
Rental Fleet
Crested Butte significantly enhanced their demo and learning rental inventory for the upcoming season. The resort bought all new demo gear for its higher end fleet, as well as a brand new Learn to Ride fleet, including women’s and children’s gear.
Along with Crested Butte, Monarch is planning to expand their demo and rental gear offerings. The resort has set aside funds to devote to new rental and demo equipment in hopes of encouraging participants to try out these new items.
Wolf Creek Ski Area’s rental department continues to upgrade its offerings by adding gear to its already extensive collection of boots, skis and snowboard equipment. Along with newly purchased alpine skis, snowboards, boots and poles, Wolf Creek is bringing in a line of Nordic skate skis and classic touring skis to its fleet.
Mountain Facilities
Thanks to the Red Bull Cold Rush, Silverton has brand new carpeting in the base tent for the 2011/12 season, while Monarch has invested in renovating its parking lot to allow for further ease of access and create a more user-friendly parking area.
Loveland’s Ptarmigan Roost Cabin, which sits at the top of Chair 2, is getting a facelift for 2011/12. The resort will be adding restrooms – the first on-hill facilities at Loveland – and restoring the original fireplace. Additionally, the E-Tow Cabin, between Chair 2 and Chair 6, is receiving a massive overhaul including a new interior and an expanded deck. Further cosmetic upgrades at Loveland taking place throughout the off-season will be noticeable to guests at the base areas of both Loveland Basin and Loveland Valley.
Steamboat Resort is installing heated pavers throughout Gondola Square base area so that guests will no longer need to trudge through snow and ice as they walk to the slopes and the Gondola. In addition, the multi-year Promenade project continues to make headway, connecting the base area with Ski Time Square, and includes a new permanent stage facility in Gondola Square which plays host to the resort’s free spring concerts.
Technologies
In 2011/12, resorts continue to use technology in unique ways that streamline and enhance the way they interact with skiers and riders. Arapahoe Basin is upgrading its e-commerce store with a new RTP E-Store. This new site will better serve guests’ needs and allow Arapahoe Basin to offer more of its products online.
Aspen Skiing Company’s ongoing energy efficiency project, whereby the resort has been replacing incandescent bulbs with efficient and aesthetically acceptable fluorescent or LED bulbs, will reach completion on December 31, 2011. On this date, all incandescent bulbs will have been completely banned and replaced, including in every building, from on-mountain restaurants to hotels, and from executive offices to parking lots.
What do you think? Leave a comment.
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In New York a skier assumes the risk of a collision with another skier.
Posted: October 10, 2011 Filed under: Ski Area, Skier v. Skier Leave a commentWhitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
A quick decision supporting the idea that you assume the risk when engaging in recreational activities.
In this decision, the New York Appellate court (called the Supreme Court of New York) upheld the summary judgment of the lower court. The case was between the plaintiff and two defendants. The plaintiff was injured by the minor defendant while skiing. The first defendant was a minor who was involved in the collision with the plaintiff. The second defendant was the youth organization that brought the minor to the ski area. It is unclear, but one of the parties in the collision was snowboarding.
Summary of the case
The court stated that when engaging in a sport or recreational activity participants consent to those “commonly appreciated risks, which are inherent in and arise out of the nature of the sport generally and flow from such participation….” The court found that the risk of injury from a collision with another skier was an inherent aspect of the sport as based on the New York Ski Statute.
GENERAL OBLIGATIONS LAW
ARTICLE 18. SAFETY IN SKIING CODE
NY CLS Gen Oblig § 18-101 (2011)
§ 18-101. Legislative purpose
The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry. [emphasize added]
From the statute the court stated, “The risk of injury caused by another skier is inherent in downhill skiing.” The defendant had also submitted evidence that he was not “engage in instances of reckless, intentional or other risk-enhancing conduct not inherent in snowboarding that might have caused the accident” which the plaintiff did not argue.
The minor defendant won the motion for summary judgment because in New York, a collision is an inherent risk of the sport of skiing. Inherent risks are risks that you must accept when participating in a sport.
The defendant youth organization was dismissed because it exercised reasonable care in supervising the youth. The organization arranged for ski lessons, and once the ski lessons were over, told the youth to stay on the bunny slope.
The court also stated, “Furthermore, the actions of the participants interrupted the causal link between National Council’s alleged negligence and plaintiff’s injury.” I’m not sure what this means. However, it would imply that the plaintiff and or defendant did something that removed the defendant’s actions from the control of the defendant organization. There was an intervening action on the part of the defendant, like leaving the bunny slope that removed the defendant youth group for the chain of liability.
So?
The case is very short and easy to read. As wonderful as that is, it also leaves out a lot of facts. You also don’t know how the court arrived at its decision. However, it reinforces the issue of assuming the risk for your own actions. If you engage in a sport or recreational activity, you assume the risks inherent in the sport. Those risks include the risks defined as inherent by a statute.
Do your guests understand the inherent risks of the activity you are presenting to them? Even though you may win a lawsuit, the cost of explaining those risks, through the litigation process is very expensive. It is better to educate your guests in advance about the risks they are going to encounter.
More importantly, when skiers and boarders realize they cannot sue for collisions it will lower the cost to the ski area. Collisions cost the ski area to pay employees to attend depositions and trials, to gather and distribute documents and evidence and to pay for attorneys to help and attend the legal meetings with clients. On a simple case that goes to trial, that amount can easily add up to $50,000 per collision that the ski area spends.
It also provides information for third parties bringing youth to a ski area. Youth need to be supervised in New York. That does not mean constant supervision, but based on the age of the youth, it requires supervision that is appropriate.
Ski lessons and controlling the range the youths were allowed to ski is important and critical here in releasing the defendant youth group from the claims of the plaintiff.
What do you think? Leave a comment.
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Whitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
Posted: October 10, 2011 Filed under: Assumption of the Risk, Legal Case, New York, Skier v. Skier, Skiing / Snow Boarding | Tags: arranging, assumption of the risk, bunny, canceled, causal, Downhill, essons, failed to raise, instructing, interrupted, issue of fact, Negligence, novices, reasonable care, Reckless, risk of injury, risk-enhancing, ski area, Skier, skiing, Slope, snowboarding, sponsored, Sport, Summary judgment, supervising, trip Leave a commentWhitman et al., v. Zeidman, 16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
Harrison Whitman et al., Appellants, v. Michael Zeidman, an Infant, by Sarit Zeidman, His Parent and Legal Guardian, et al., Respondents.
5616
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
16 A.D.3d 197; 791 N.Y.S.2d 54; 2005 N.Y. App. Div. LEXIS 2505
March 15, 2005, Decided
March 15, 2005, Entered
CORE TERMS: lessons, snowboarding, risk of injury, summary judgment, failed to raise, issue of fact, reasonable care, risk-enhancing, supervising, instructing, interrupted, sponsored, arranging, downhill, reckless, canceled, skiing, novices, causal, skier, bunny, slope, sport, trip
COUNSEL: Law Offices of Renee Simon Lesser, P.C., New York (W. Matthew Sakkas of counsel), for appellants.
Acito, Klein & Candiloros, New York (Francesca A. Sabbatino of counsel), for Zeidman respondents.
Carol R. Finocchio, New York (Mary Ellen O’Brien of counsel), for National Council of Young Israel, respondent.
JUDGES: Concur–Buckley, P.J., Andrias, Friedman, Gonzalez, Sweeny, JJ.
OPINION
[*197] [**55] Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2004, which granted defendants’ motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Harrison Whitman was injured in a collision with defendant Michael Zeidman while snowboarding. By “engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” ( [***2] Morgan v State of New York, 90 NY2d 471, 484, 685 NE2d 202, 662 NYS.2d 421 [1997]). The risk of injury caused by another skier is inherent in downhill skiing (General Obligations Law § 18-101). Defendant submitted proof that he did not engage in instances of reckless, intentional or other risk-enhancing conduct not inherent in snowboarding that might have caused the accident, and plaintiff failed to raise an issue of fact (see Kaufman v Hunter Mtn. Ski Bowl, 240 AD2d 371, 657 NYS2d 773 [1997], lv denied 91 NY2d 805, 668 NYS2d 560, 691 NE2d 632 [1998]).
Although defendant National Council of Young Israel sponsored the trip, it exercised reasonable care in supervising the participants by arranging for lessons to be provided, and once the lessons were canceled, instructing those who were novices to stay on the “bunny” slope (see generally Fintzi v New Jersey YMHA-YWHA Camps, 97 NY2d 669, 765 NE2d 288, 739 NYS2d 85 [2001]). Furthermore, the actions of the participants interrupted the causal link between National Council’s alleged negligence and plaintiff’s injury (see [***3] Boltax v Joy Day Camp, 67 NY2d 617, 490 NE2d 527, 499 NYS2d 660 [1986]). Concur–Buckley, P.J., Andrias, Friedman, Gonzalez and Sweeny, JJ.
Monarch Mountain Season Pass is Now Good at 21 Resorts
Posted: October 7, 2011 Filed under: Ski Area Leave a commentTelluride highlights the list of new pass partners
Monarch Mountain has added three more areas to its list of pass partners; Telluride and Ski Cooper in Colorado and Ski Apache in New Mexico. All three are now offering free skiing/riding to Monarch Mountain season pass holders. Monarch Mountain passes are accepted at nine Colorado areas, six New Mexico areas and areas in Utah, Wyoming, California, Michigan, Arizona and British Columbia, Canada.
Colorado areas include; Loveland, Durango, Powderhorn, Sunlight, Sol Vista, Silverton, Ski Cooper, Telluride and of course Monarch Mountain.
There are six ski areas in New Mexico that honor the Monarch Mountain season pass: Taos, Angel Fire, Red River, Pajarito, Sipapu and Ski Apache.
In Utah, Alta offers Monarch Mountain pass holders half-price tickets all season while Grand Targhee, Wyoming and Revelstoke, British Columbia offer free skiing/riding to Monarch Mountain season pass holders.
China Peak, California, Arizona Snowbowl and Indianhead Michigan round out Monarch Mountain’s pass partner team for the 2011-12 season.
“We are very excited to have added Telluride as one of our pass partners for this season” said Rich Moorhead, Monarch CEO. “Telluride is a truly world class destination resort that our guests owe it to themselves to visit”.
Revelstoke, British Columbia, returns this season with an offer that includes three days of free skiing/riding and half-price lodging at the Nelsen Lodge located at the base of Revelstoke Mountain Resort. Monarch Mountain skiers/riders who used their pass benefits last winter in Revelstoke came home with excellent accounts of a great mountain complemented by a charming town.
21 different areas all for one low price make the Monarch Mountain season pass the best value in North America. Season passes are on sale for $339.00 (Adult price, other prices are available on the website) through November 6, 2011. Most of Monarch Mountain’s pass partners offer three days of free lift tickets, but some offers vary. Details and pricing can be found at http://www.skimonarch.com or by calling a friendly local at 719.530.5105
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Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Posted: October 3, 2011 Filed under: Assumption of the Risk, Ski Area, Skier v. Skier Leave a commentFontaine v. Boyd, 2011 R.I. Super. LEXIS 27
Doctrine of Assumption of the risk applies to the sport of skiing, unless the defendant was skiing recklessly, intentionally or unreasonably increased the risk of skiing.
Two friends were skiing together in New Hampshire at an unnamed resort. The defendant intermediate skier allegedly skied over the back of the plaintiff expert skier’s skis, after the plaintiff had passed the defendant. The plaintiff fell suffering injuries to her knees.
The lawsuit was in Rhode Island, but because the accident, the tort, occurred in New Hampshire, New Hampshire law was used by the Rhode Island court to determine the outcome of the case. The defendant had filed a motion for summary judgment, which was granted by the trial court and the plaintiff appealed that decision.
The issue the court based its decision on was Assumption of the Risk. The court identified three different definitions of assumption of the risk.
(1) that a plaintiff has given his or her express consent to relieve the defendant of an obligation to exercise care for his or her protection (such that plaintiff agrees to take his or her chances as to injury from a known or possible risk);
(2) that plaintiff has entered voluntarily into some relationship with the defendant which he or she knows involves the risk; or
(3) that plaintiff, aware of the risk created by the defendant’s negligence, proceeds voluntarily to encounter it.
In this case, the discussion of whether the risk assumed by the plaintiff was primary or secondary. Primary assumption of risk was defined by the court as:
When “plaintiff’s conduct in voluntarily encountering a known risk was reasonable,” then “the defense of assumption of the risk in its primary sense operates to deny the defendant’s negligence by denying the duty of care element of that offense; plaintiff does not recover because defendant’s conduct is not a legal wrong as to him
This is the basic long used definition of assumption of the risk or now primary assumption of the risk. The plaintiff knew and assumed the risk of the injury. Therefore, the plaintiff cannot recover.
Secondary assumption of the risk is based on the plaintiff’s conduct, not the plaintiff’s knowledge and assent. If the plaintiff places him or herself in a risky position the plaintiff assumes the risk. The best example of this is playing sports. You may not know all the ways you can be injured playing softball. However, you assume those risks by playing. The court in this case defined it as:
But if plaintiff’s conduct was unreasonable, the defense of assumption of risk in its secondary sense operates to bar his [or her] recovery for two reasons – – because he [or she] implicitly consented to accept the risk, and on the policy grounds that it would be inappropriate to impose on the defendant a loss for which plaintiff’s own negligence was in part responsible.”
This definition came from the Restatement (Second) of Torts § 496A, comment c(4) (1965)).
The New Hampshire Supreme Court defines primary assumption of the risk:
…when a plaintiff voluntarily and reasonably enters into some relationship with a defendant, which the plaintiff reasonably knows involves certain obvious risks, such that a defendant has no duty to protect the plaintiff against the injury caused by those risks. quoting Werne v. Executive Women’s Golf Assoc., 158 N.H. 373, 969 A.2d 346, 348 (N.H. 2009)
Perhaps a better way to understand this is, if the defendant does not owe the plaintiff a duty, because they are engaged in a sport or recreational activity, then the plaintiff’s action cannot give rise to liability on the part of the defendant. However, the defendant can be liable if the defendant acts outside of the normal scope of the sport or activity to substantially increase the risks of the sport or activity to the plaintiff.
Another softball example would be it is a normal risk of the activity in the softball league for first baseman to have their foot stepped on by the runner. Cleats are not allowed in the game. The runner steps on the first baseman’s foot causing injury because the runner was wearing cleats. Because the runner increased the risk of the sport, the plaintiff, first baseman could not assume the risk.
Here thought the defendant did nothing to increase the risks of the sport of skiing. The defendant was not skiing recklessly. The defendant had a duty not to act in a “manner that would unreasonably increase those inherent risks.” As such the plaintiff’s claims were barred by the legal doctrine of primary assumption of the risk.
So?
Here the court held that skiing has risks in the sport and one of those risks is a collision between skiers on the slopes. Unless one skier has increased the risk by skiing recklessly acting in an unreasonable manner or acting intentionally towards the other skier, the injured skier assumes the risks of a collision. As the court stated in summing up the case:
Plaintiff Fontaine does not allege that Defendant Boyd was skiing recklessly, intentionally ran over the back of her skies, or that she in any other way unreasonably increased the risk, inherent in skiing, that the two of them might collide.
In most states, this is the standard of care, not the “skier responsibility code” which is basically a public service announcement that is different every time it is reposted or used.
So Now What?
Ski areas need to get out of the let’s start lawsuit business between their customers. Every time two skiers/boarders collide, there is a threat of a suit now days. Ski areas believe they are not involved, but they are.
· Ski areas receive subpoenas to find documents related to the incident. This takes time and costs money.
· Ski area employees who were involved in the incident are subpoenaed to testify at depositions.
· Attorneys are sent to the deposition with the ski area employees.
· Ski area employees who were involved in the incident are subpoenaed to testify at trial.
· Attorneys are sometimes sent to the trials with the ski area employees.
If two ski patrollers were involved in a collision which ends up in a suit the cost to the ski area can be substantial. If the patrollers are paid $20 per hour let’s look at the cost to the resort.
| 1 hour | to find, copy and mail the relevant documents | $20 |
| 2 hours | per patroller deposition prep with the ski area attorney | $80 |
| 8 hours | Drive to and from and attend deposition per patroller | $320 |
| 4 hours | Trial prep with attorney for the parties per patroller | $160 |
| 16 hours | Drive to and attend 5 day trial per patroller | $640 |
| Total cost to ski area for the lost time of patrollers | $1220.00 |
These costs do not take into account the attorney time
| 2 hours | Review file to understand the issues | $800 |
| 4 hours | Patroller prep | $1600 |
| 16 hours | Deposition with patrollers | $6400 |
| Total attorney cost | $8800.00 |
At this point, the ski area has more than $10,000 invested in a skier/skier collision lawsuit. And the ski area is not a party to the suit. This does not cover the cost of covering for the ski patrollers if they are gone during the ski season.
1. Inform guests that collisions occur, and they assume the risk of a collision.
2. Have the ski patrol take care of the victims and not become involved in dealing with skier v. skier issues.
3. Make sure the standard of care for determining liability in a skier v. skier collision is reckless or intentional, not a mere violation of some public service announcement.
What do you think? Leave a comment.
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Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27
Posted: October 3, 2011 Filed under: Assumption of the Risk, Ski Area, Skier v. Skier Leave a commentFontaine v. Boyd, 2011 R.I. Super. LEXIS 27
Andree Fontaine v. Deborah Boyd
C.A. No. WC-2007-0794
SUPERIOR COURT OF RHODE ISLAND, WASHINGTON
2011 R.I. Super. LEXIS 27
February 21, 2011, Filed
JUDGES: [*1] SAVAGE, J.
OPINION BY: SAVAGE, J.
OPINION
DECISION
SAVAGE, J. This Court is asked in this action to determine whether a claim of negligence by one skier against another skier for injuries sustained when the two friends collided while skiing recreationally is barred as a matter of law by the doctrine of primary assumption of the risk under New Hampshire law. Defendant Deborah Boyd has filed a motion for summary judgment against Plaintiff Andree Fontaine, seeking to bar Plaintiff’s negligence claim against her on the grounds that she owed no duty to protect Plaintiff from the inherent risk of such a collision. For the reasons set forth in this Decision, this Court grants Defendant Boyd’s motion for summary judgment.
I.
Factual Background and Procedural History
This case stems from a skiing accident that occurred when Defendant Deborah Boyd allegedly skied over the back of Plaintiff Andree Fontaine’s skis, causing Plaintiff Fontaine to fall and sustain injuries. The incident occurred on December 31, 2005, while Defendant Boyd, an intermediate to advanced skier, and Plaintiff Fontaine, an expert skier, were skiing with a group of five friends at Mount Sunapee in New Hampshire. (Fontaine Dep. 24:22; 16:20, Feb. [*2] 10, 2009.) Plaintiff Fontaine, a Massachusetts resident, has brought a single count complaint for negligence against Defendant Boyd, a Rhode Island resident.
Plaintiff Fontaine testified at her deposition that, on December 31, 2005, the group was skiing down Skyway Trail, an intermediate level trail on Mount Sunapee. Id. 15:19. After starting down the trail, Plaintiff Fontaine began to catch up with Defendant Boyd, who was skiing in front of Plaintiff Fontaine, and decided to pass her. Id. 34:16. Plaintiff Fontaine testified that after passing Defendant Boyd, she heard scraping metal, felt like she was hit, and fell. Id. 35:1; 38:11; 39:10-12. Plaintiff Fontaine alleges that Defendant Boyd, without paying attention and failing to maintain control, negligently and carelessly skied across the back of her skies, causing Plaintiff Fontaine to fall. (P1’s Ans. to Interrog. No. 21.) Although Defendant Boyd contends that she did not ski over the back of Plaintiff Fontaine’s skies, Defendant Boyd does not dispute Plaintiff Fontaine’s allegation in this regard for the purposes of this motion.
As a result of her fall, Plaintiff Fontaine sustained serious and permanent injuries to her left and [*3] right knees. The injuries have resulted in extensive medical treatment, including multiple surgeries. Plaintiff Fontaine continues to experience pain and limited mobility.
Defendant Boyd filed a motion for summary judgment, together with a supporting memorandum of law. Plaintiff Fontaine filed an objection and memorandum in opposition to Defendant Boyd’s motion for summary judgment to which Defendant Boyd replied. This Court heard oral argument on May 17, 2010. After review of these memoranda, oral argument and research and review of pertinent authority, this Decision follows.
II.
Standard of Review
[HN1] In ruling on a motion for summary judgment, this Court must view all facts, and draw all reasonable inferences therefrom, in a light most favorable to the non-moving party. Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001). If the facts, viewed in that light, are insufficient to sustain a cause of action, then the moving party is entitled to judgment as a matter of law. Id.
III.
Analysis
A. Choice of Law
As a preliminary matter, Defendant Boyd argues that choice of law principles require the application of New Hampshire law to this case. Plaintiff Fontaine agrees that New Hampshire [*4] law should apply.
[HN2] In resolving conflict-of-law issues, Rhode Island adopts the interest-weighing approach and considers the following factors:
1.) predictability of results;
2.) maintenance of the interstate and international order;
3.) simplification of the judicial task;
4.) advancement of the forum’s governmental interests; and
5.) application of the better rule of law.
Cribb v. Augustyn, 696 A.2d 285, 288 (R.I. 1997). This Court also considers:
1.) the place where the injury occurred;
2.) the place where the conduct causing the injury occurred;
3.) the domicile, residence, nationality, place of incorporation and the place of business of the parties; and
4.) the place where the relationship, if any, between the parties is centered.
Id. The Rhode Island Supreme Court has stated that in “tort cases, the most important factor is the location where the injury occurred.” Taylor v. Mass. Flora Realty, Inc., 840 A.2d 1126, 1128 (R.I. 2004).
After reviewing the memoranda submitted by both parties, this Court agrees that New Hampshire law should govern this case. Here, the injury occurred after an alleged collision between the parties on a New Hampshire ski mountain. The relationship between the parties, [*5] for the purposes of this case, was centered in New Hampshire. Applying New Hampshire law to an accident at a New Hampshire ski mountain would lead to more predictable results in similar cases and reflect the greater interest of that forum in addressing skier-to-skier liability and skier safety at its resorts. Rhode Island and Massachusetts have little nexus to this dispute other than each being the residence of one of the parties. 1
1 Plaintiff Fontaine conceded at oral argument that, under the laws of Rhode Island and Massachusetts, her claim might well be barred by the doctrine of primary assumption of the risk.
B. Primary Assumption of the Risk
Defendant Boyd argues that under New Hampshire law, Plaintiff Fontaine’s claim is barred by the doctrine of primary assumption of the risk. According to Defendant Boyd, under that doctrine, she owed no duty to protect Plaintiff Fontaine from the ordinary and inherent risks of the sport of skiing. Defendant Boyd argues that, by participating in the sport of downhill skiing, Plaintiff Fontaine assumed the risk of a collision on the hill with another individual, as that is a risk inherent in the sport of skiing. Her duty to Plaintiff Fontaine, [*6] therefore, was not a duty to exercise reasonable care (as would be typical in a negligence case) but was only a duty not to unreasonably increase the risk of harm to Plaintiff Fontaine that is inherent in the sport of skiing. As there is no evidence that Defendant Boyd did anything to unreasonably increase the inherent risk of a collision with her friend while they were skiing, she contends that she is not liable to Plaintiff Fontaine as a matter of law. In support of her argument, Defendant Boyd relies on a New Hampshire statute that [HN3] “recognize[es] that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities “N.H. Rev. Stat. § 225-A:1 (1957, as amended).
In the alternative, Defendant Boyd argues that, even were a negligence standard to define her duty to Plaintiff Fontaine, Plaintiff’s claim would be barred under New Hampshire’s comparative negligence statute, as a matter of law, because Plaintiff Fontaine was more than fifty percent (50%) at fault for the accident.
Plaintiff Fontaine quarrels with Defendant Boyd’s theory as to the legal duty that one skier owes to another skier when both [*7] are engaged in recreational skiing. Plaintiff Fontaine contends that Defendant Boyd owed her a duty to exercise reasonable care under the circumstances such that Defendant Boyd is not afforded immunity under the New Hampshire primary assumption of the risk doctrine. In arguing for the application of a negligence standard, Plaintiff Fontaine specifically rejects Defendant Boyd’s argument that Defendant only had a duty to not unreasonably increase the risk of harm to Plaintiff Fontaine that is inherent in skiing. In this regard, Plaintiff Fontaine heavily relies on another provision of the same New Hampshire statute relied on by Defendant Fontaine that states that [HN4] “[e]ach skier shall…conduct himself [or herself] within the limits of his [or her] own ability, maintain control of his [or her] speed and course at all times while skiing, . . . and refrain from acting in a manner which may cause or contribute to the injury of himself [or herself] or others.” Id. § 225-A:24. She contends that the statutory provision relied on by Defendant Boyd that provides that skiers assume inherent risks of skiing as a matter of law applies only to claims by skiers against ski resort operators and not [*8] claims of negligence by one skier against another skier. See id. § 225-A:1. According to Plaintiff Fontaine, there are genuine issues of material fact as to whether Defendant Boyd’s conduct, allegedly skiing over the back of Plaintiff Fontaine’s skis, demonstrates a deviation by Defendant Boyd from the negligence standard of reasonable care owed by one skier to another skier under New Hampshire law.
Alternatively, should this Court find that a negligence standard does not apply, Plaintiff Fontaine agrees with Defendant Boyd that Defendant only would be liable if she “unreasonably increased” the inherent risk of injury to Plaintiff Fontaine from downhill skiing. According to Defendant Boyd, however, Plaintiff Fontaine has not produced any evidence to suggest that Defendant Boyd acted unreasonably under the circumstances so as to increase the risk inherent in downhill skiing. Defendant Boyd asserts that Plaintiff Fontaine improperly bases her entire theory of liability on the fact that an accident occurred.
1. The Doctrine of Assumption of the Risk
[HN5] Assumption of the risk has been defined by various courts to mean: (1) that a plaintiff has given his or her express consent to relieve the [*9] defendant of an obligation to exercise care for his or her protection (such that plaintiff agrees to take his or her chances as to injury from a known or possible risk); (2) that plaintiff has entered voluntarily into some relationship with the defendant which he or she knows involves the risk; or (3) that plaintiff, aware of the risk created by the defendant’s negligence, proceeds voluntarily to encounter it. See Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1005 (3rd Cir. 1983) (citing Restatement (Second) of Torts § 496A comment c (1965)). In reality, however, there are really two types of assumption of risk defenses: primary and secondary assumption of risk. When “plaintiff’s conduct in voluntarily encountering a known risk was reasonable,” then “the defense of assumption of the risk in its primary sense operates to deny the defendant’s negligence by denying the duty of care element of that offense; plaintiff does not recover because defendant’s conduct is not a legal wrong as to him [or her].” Id. (citing Prosser, Law of Torts § 68 at 440 (4th ed. 1971)) (other citations omitted) (emphasis added). “But if plaintiff’s conduct was unreasonable, the defense of assumption of risk [*10] in its secondary sense operates to bar his [or her] recovery for two reasons – – because he [or she] implicitly consented to accept the risk, and on the policy grounds that it would be inappropriate to impose on the defendant a loss for which plaintiff’s own negligence was in part responsible.” Id. (citing Restatement (Second) of Torts § 496A, comment c(4) (1965)) (other citations omitted) (emphasis added). 2
2 “In its secondary sense, therefore, the defense of assumption of risk overlaps with the defense of contributory negligence [or the doctrine of comparative fault].? Smith v. Seven Springs Farm, Inc., 716 F. 2d 1002, 1006 (3rd Cir. 1983).
Where [these defenses] have been distinguished, the traditional basis has been that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable [person], however unaware, unwilling, or even protesting the plaintiff may be. Obviously the two may co-exist, when the plaintiff makes an unreasonable choice to incur the risk; but either may exist without the other. The significant difference, when there [*11] is one, is likely to be one between risks which were in fact known to the plaintiff and risks which he [or she] merely might have discovered by the exercise of ordinary care.
Id. (quoting Prosser, Law of Torts § 68 at 441 (4th ed. 1971)) (other citation omitted). ?Thus, if a distinction must be made, it is that assumption of risk involves the meeting of a subjectively known risk, whereas contributory negligence may involve the plaintiff exposing himself [or herself] to a danger of which he [or she] was subjectively unaware but which would have been apparent had he [or she] used due care. Id. With the former, plaintiff’s conduct may be quite reasonable because its advantages outweigh its risks; but regardless, if plaintiff is injured, defendant is not liable. With the latter, plaintiff’s conduct may be considered in itself unreasonable; if plaintiff is injured, he [or she] is barred from recovering because of his [or her] failure to exercise due care.? Id.
Under New Hampshire law, when a defendant breaches a duty owed to a plaintiff and the plaintiff knows of the danger presented by a defendant’s negligence and voluntarily encounters it, the defendant may be held liable. See Allen v. Dover, 148 N.H. 407, 807 A.2d 1274, 1283 (N.H. 2002). [*12] The fact that the plaintiff knew of the danger and voluntarily encountered it does not, in and of itself, bar the plaintiff from recovering for her injuries; rather, this fact is merely evidence to be considered with other relevant facts on the issue of [the plaintiff’s negligence].? Id. Use of the term assumption of the risk to bar a non-negligent plaintiff’s recovery merely because she [or he] knew that a defendant breached a duty owed to her [or him] has been repeatedly rejected by [the New Hampshire Supreme Court], which has held that a plaintiff does not assume the risk of injury simply by knowing of and voluntarily encountering a risk created by a defendant’s negligence.? Id.
[HN6] Recognizing the doctrine of primary assumption of the risk, the New Hampshire Supreme Court has explained that it applies when a plaintiff voluntarily and reasonably enters into some relationship with a defendant, which the plaintiff reasonably knows involves certain obvious risks, such that a defendant has no duty to protect the plaintiff against the injury caused by those risks. Werne v. Executive Women’s Golf Assoc., 158 N.H. 373, 969 A.2d 346, 348 (N.H. 2009) (holding that defendant had no duty to protect plaintiff [*13] from severe injury caused when he hit a golf ball and it struck her head such that plaintiff’s claim of negligence was barred by the doctrine of primary assumption of the risk); Allen v. Dover, 148 N.H. 407, 807 A.2d 1274, 1282 (N.H. 2002) (doctrine of primary assumption of the risk bars plaintiff from recovering damages for injuries received from being hit in the head by an errant softball as that was an inherent risk of the game from which the defendant had no duty to protect plaintiff). When a defendant owes no duty to a plaintiff in light of a particular risk, the defendant cannot be held accountable to a plaintiff who is injured upon the plaintiff’s voluntary encounter with that risk. See id.; La Fontaine v. St. John, 92 N.H. 319, 321, 30 A.2d 476 (1943). In other words, a defendant who has no duty cannot be negligent. Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103, 104 (N.H. 1993).
The New Hampshire Supreme Court has defined the boundaries of the doctrine of primary assumption of the risk as applied to sports injuries. It has elucidated the circumstances under which a defendant may and may not be liable for causing injury to another participant in the sport, stating:
[a] [HN7] defendant may be held [*14] liable to the plaintiff for [unreasonably] creating or countenancing risks other than risks inherent in the sport, or for increasing inherent risks, and in any event will be held liable for reckless ☐ or intentional ☐ injurious conduct totally outside the range of ordinary activity involved in the sport, but liability should not place unreasonable burdens on the free and vigorous participation in the sport. 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.
Allen, 807 A.2d at 1285 (citations omitted).
In applying these precepts, the New Hampshire Supreme Court in Allen held that a defendant had no duty to protect a plaintiff against injury to her head from being struck by a softball, as that was an ordinary risk of playing recreational softball. 148 N.H. 407, 416, 807 A.2d 1274 (N.H. 2002). [HN8] A person “owes a duty of care only to those who are foreseeably endangered by their conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous.” Id. at 417 (citing Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208 (1992)).
The [*15] New Hampshire Supreme Court recently reaffirmed the dictates of Allen in Werne v. Executive Women’s Golf Ass’n and held that a plaintiff golfer had failed to allege facts showing that the defendant’s conduct increased the inherent risk in glow golf, 3 as required for plaintiff to establish liability on her negligence claim. 158 N.H. 373, 969 A.2d 346 (N.H. 2009). In Werne, plaintiff and defendant were engaged in a game of glow golf when defendant made a shot that hit plaintiff in the head, causing her to suffer a concussion and permanent brain damage. Id. at 374. The Supreme Court concluded that being hit by an errant golf ball is a risk inherent in the game of glow golf and that plaintiff did not allege any facts to show that the defendant unreasonably increased this inherent risk by her conduct. Id. at 378.
3 Glow golf involves golfing at night while using glowing golf balls and other glowing devices, such as tiki torches and glow necklaces, to illuminate the golf course and the participants. Werne, 158 N.H. at 374.
The New Hampshire Supreme Court has not yet had occasion to address the question of the duty that one skier owes to another skier in the course of recreational skiing. At least one California [*16] court, however, has held that the doctrine of primary assumption of the risk bars a negligence claim by a skier against another skier. See Cheong v. Antablin, 16 Cal. 4th 1063, 68 Cal. Rptr. 2d 859, 946 P.2d 817 (Cal. 1997). In Cheong, the defendant was downhill skiing at a speed faster than his ability. Id. After turning in an attempt to slow down and stop, the defendant collided with the plaintiff and injured him. Id. at 819. The Court found, consistent with the New Hampshire Supreme Court’s holding in cases involving sports other than skiing, that the defendant’s conduct did not rise to the level of reckless or intentional behavior, such that the plaintiff assumed the risk, inherent in skiing, that the defendant would collide with him in this situation. Id. at 822-823.
This Court sees no reason that the New Hampshire Supreme Court would apply any different standard of care in the skiing context than did this California court or than it has applied with respect to other sports activities. 4 To do so would be to treat skiers differently from participants in other sport activities, potentially chilling their active participation in a sport that has its inherent risks but that is enjoyed by legions of residents and visitors [*17] in the mountains of New Hampshire.
4 Neither the parties to this case nor this Court have been able to locate any New Hampshire authority discussing the duty that one skier owes to another skier during recreational skiing. Surprisingly, there appear to be no reported New Hampshire cases where one skier has sued another skier for personal injury. Query whether the dearth of New Hampshire authority involving a suit by one skier against another skier – – in a state replete with ski resorts and presumably with a documented history of skier collisions at such resorts – – itself suggests a generally accepted view that, in the ordinary case, a skier has no liability for colliding with and causing injury to another skier?
In addition, were this Court to apply a different standard of care to recreational skiers than to other athletes, the illogical effect would be to impose a standard of care for skiers suing other skiers that differs from the standard of care that the New Hampshire Supreme Court has recognized as applicable where a skier sues a ski area operator. In Cecere v. Loon Mountain Recreation Corp., the New Hampshire Supreme Court, relying on N.H. Rev. Stat. § 225-A:1, held that “[s]ki [*18] area operators owe no duty to protect patrons from the inherent risks of skiing and thus are immunized from liability for any negligence related to these risks.” 155 N.H. 289, 295, 923 A.2d 198, 205 (N.H. 2007). Finding a snowboard jump in a terrain park to be a variation in terrain that is an inherent risk of skiing, the Supreme Court barred recovery against Loon Mountain in a wrongful death action for its alleged negligence in designing, constructing and maintaining a jump that the decedent failed to safely land. Were this Court to apply a negligence standard in the case at bar, it would suggest that skiers owe a higher duty to other skiers than a ski area operator owes to skiers with respect to protecting them from the inherent risks of skiing. This result cannot be countenanced by this Court.
While Plaintiff Fontaine argues that another provision of the New Hampshire statute that the New Hampshire Supreme Court relied on in Cecere makes it clear that a negligence standard applies to an action by one skier against another skier for injuries resulting from a collision, as distinguished from the statutory immunity recognized in Cecere which she argues is limited to ski area operators, [*19] this Court disagrees. The statutory language in § 225-A:24 upon which Plaintiff Fontaine relies must be considered together with the broader provisions of that statutory section that provide, in pertinent part, as follows:
Responsibilities of Skiers and Passengers. It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing, snowboarding, snow tubing, and snowshoeing as sports, and the use of passenger tramways associated therewith may be hazardous to the skiers or passengers. Therefore:
I. Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; terrain, lift towers, and components thereof (all of [*20] the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.
II. Each skier and passenger shall have the sole responsibility for knowing the range of his or her own ability to negotiate any slope, trail, terrain, or passenger tramway. Any passenger who boards such tramway shall be presumed to have sufficient knowledge, abilities, and physical dexterity to negotiate the lift, and no liability shall attach to any operator or attendant for failure to instruct persons on the use thereof.
III. Each skier or passenger shall conduct himself or herself, within the limits of his or her own ability, maintain control of his or her speed and course at all times both on the ground and in the air, while skiing, snowboarding, snow tubing, and snowshoeing heed all posted warnings, and refrain from acting in a manner which may cause or contribute to the injury of himself, herself, or others.
. . .
V. No skier, passenger or other person shall:
. . .
(c) Engage in any type of conduct which will contribute to cause injury to any other person nor shall [*21] he willfully place any object in the uphill ski track which may cause another to fall while riding in a passenger tramway.
. . .
N.H. Rev. Stat. § 225-A:24 (emphasis added). Plaintiff Fontaine argues that the language of § 225-A:24 that imposes duties on skiers to “know☐ the range of [their] abilit[ies],” “conduct [themselves] within the limits of [their] abilit[ies],” “maintain control of [their] speed and course at all times both on the ground and in the air, while skiing” and “refrain from acting in a manner which may cause or contribute to the injury of [themselves] or others” suggests that the legislature created statutory duties of reasonable care that skiers owe other skiers, thereby subjecting them to potential negligence liability for a violation of these duties. Id.
This Court, however, construes § 225-A:24 differently. It clearly provides, in addition to the statutory language relied upon by Plaintiff Fontaine, that “every person who participates in the sport of skiing… accepts as a matter of law the dangers inherent in the sport, . . . includ[ing] . . . collisions with other skiers.” Id. Moreover, § 225-A:24 is only one section of Chapter 225 (“Skiers, Ski Area and Passenger [*22] Tramway Safety”) of Title XIX (“Public Recreation”) of the Revised Statutes of the State of New Hampshire. Section 225-A:1, which declares the policy underpinnings of this statutory scheme, provides, in pertinent part, as follows:
Declaration of Policy. The state of New Hampshire finds that the sports of skiing, snowboarding, snow tubing, and snowshoeing are practiced by a large number of citizens of the state of New Hampshire, and also that skiing, snowboarding, snow tubing, and snowshoeing attract to the state of New Hampshire large numbers of nonresidents significantly contributing to the economy of New Hampshire. Therefore, it shall be the policy of the state of New Hampshire to protect its citizens and visitors from unnecessary mechanical hazards in the operation of ski tows, lifts, nordic ski jumps and passenger tramways, to ensure that proper design and construction are used, that board accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of ski tows, ski lifts, nordic ski jumps and passenger tramways. . . . Further, it shall be the policy of the state of New [*23] Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and nordic ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.
Id. § 225-A:1 (emphasis added). This policy declaration thus mirrors the language of § 225-A:24 to the extent that it provides “that the sport of skiing involve[s] risks and hazards which must be assumed as a matter of law by [skiers].” Id. While the statute thus imposes duties on skiers generally, under § 225-A:24, those duties must be construed in light of the other provisions of the statute, in §§ 225-A:1 and 225-A:24, that articulate the policy of the state of New Hampshire that skiers assume certain risks – – including collisions with other skiers – – as a matter of law. In fact, the legislature itself recognized that the policy of the state includes both the imposition of duties on skiers to enhance skier safety and recognition that skiers assume certain risks inherent in the sport of skiing [*24] as a matter of law. The fact that the latter policy limits the former is reflected in the statutory language of the policy provision itself, which reads:
it shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers . . . recognizing that the sport of skiing . . . involve[s] risks and hazards which must be assumed as a matter of law ….
Id. (emphasis added).
While Plaintiff Fontaine seeks to limit Chapter 225-A (inclusive of the provisions in §§ 225-A:1 and 225-A:24) to ski operators, the language of the statute is broader. Chapter 225-A, for example, is entitled “Skiers, Ski Area and Passenger Tramway Safety.” Id. Ch. 225-A (emphasis added). Although the declaration of policy contained in § 225:A-1 clearly includes protecting citizens and visitors from hazards under the control of ski area operators (such as the design, construction and operation of ski tows, lifts, jumps and tramways), it also discusses skiers’ responsibilities and their assumption of risks and hazards “regardless of all safety measures taken by ski area operators.” Id. 225-A:1. Indeed, § 225-A:24 contains a lengthy provision entitled “Responsibilities of Skiers and Passengers” [*25] that further defines the risks skiers assume as a matter of law and their responsibilities to enhance skier safety. Id. § 225-A:24. Moreover, § 225-A:24 exists in addition to § 225-A:23 – – a provision that outlines the responsibilities of ski area operators. See id. §§ 225-A:23 and 225-A:24.
While Chapter 225-A only explicitly immunizes ski area operators from liability for injuries resulting from dangers inherent in the sport, see id. § 225-A:24(I), it in no way suggests that skiers may be liable in like circumstances. Ski area operators, as the proverbial “deep pockets” potentially available to compensate injured skiers at their resorts, undoubtedly were of particular focus in this legislative enactment. That fact is reflected in the policy preamble of the statute that recognizes that “skiing. . . attract[s] to the state of New Hampshire large numbers of nonresidents significantly contributing to the economy of New Hampshire.” Id. § 225-A:1. The legislature made a policy judgment that providing ski operators with immunity was necessary to promote tourism and the state’s ski economy. Yet, this Court sees no legislative intent to allow skiers who are injured by risks and hazards inherent [*26] in skiing that they assumed as a matter of law (such as “collisions with another skier” under § 225-A:24(I)) to sue other skiers but bar them in those circumstances from suing the ski area operator. To the contrary, [HN9] the legislature clearly reaffirmed the common law doctrine of primary assumption of the risk and codified it in the statute with respect to skiers. Id. §§ 225-A:1 and 225-A:24. Chapter 225-A thus protects skiers from liability for negligence with respect to injuries to another skier resulting from the inherent risks of skiing, notwithstanding the absence in the statute of an express immunity provision for individual skiers.
In light of the existing case law in New Hampshire applying the doctrine of primary assumption of the risk to injuries received during recreational sports activities, the assumption of the risk language in §§ 225-A:1 and 225-A:24, this Court’s interpretation of Chapter 225-A, the New Hampshire Supreme Court’s refusal to impose a negligence standard on ski area operators, and other persuasive authority applying the doctrine of primary assumption of the risk to bar skier-to-skier liability, it is apparent that negligence is not the appropriate standard [*27] to be applied in this case. Although Plaintiff Fontaine has advanced a creative argument using the language of § 225-A:24 to support her position, it is clear from both the language of Chapter 225-A in its entirety and its policy underpinnings that the New Hampshire legislature in no way intended that statute to negate the common law doctrine of primary assumption of the risk vis-a-vis individual skiers or impose a legal duty of ordinary care upon skiers different from the duty imposed on ski operators. It intended, to the contrary, to codify skiers’ responsibilities to try to enhance skier safety while at the same time retaining the doctrine of primary assumption of the risk to limit the liability of skiers should injury caused by inherent risks of skiing occur. To recognize a duty of ordinary care, as Plaintiff Fontaine suggests, would be to countenance a negligence action by one skier against another skier, in the absence of conduct by that other skier that unreasonably increased the inherent risks attendant to skiing, that could chill active participation in a sport that has its inherent risks but is part of life in the mountains of New Hampshire.
This Court concludes, therefore, [*28] as a matter of law, that Defendant Boyd had no duty to protect Plaintiff Fontaine from dangers inherent in the sport of skiing. Defendant Boyd only had the duty not to act in a manner that would unreasonably increase those inherent risks. Accordingly, absent facts from which a reasonable fact finder could conclude that Defendant Boyd unreasonably increased the risks to Plaintiff Fontaine inherent in skiing, Plaintiff Fontaine’s claim is barred by the doctrine of primary assumption of the risk. See Werne, 158 N.H. at 378.
2. Application of the Doctrine of Primary Assumption of the Risk to this Case
Plaintiff Fontaine argues here that Defendant Boyd was not paying attention and failed to maintain control when she allegedly skied over the back of Plaintiff Fontaine’s skis. Plaintiff Fontaine does not allege that Defendant Boyd was skiing recklessly, intentionally ran over the back of her skies, or that she in any other way unreasonably increased the risk, inherent in skiing, that the two of them might collide. Additionally, there are no facts in the record to support a finding of recklessness or intentional misconduct by Defendant Boyd or action or inaction by her that unreasonably increased [*29] the risk to Plaintiff Fontaine that Defendant Boyd would collide with her on the slope.
Thus, in viewing the facts in a light most favorable Plaintiff Fontaine, by assuming that Defendant Boyd was not paying attention, failed to maintain control, and skied over the back of Plaintiff Fontaine’s skies, this Court must conclude that the conduct of Defendant Boyd does not rise to the level of unreasonably increasing the risk to Plaintiff Fontaine, inherent in skiing, that another skier, skiing in such a manner, might collide with her and cause her to fall and be injured. Those facts, even if accepted for purposes of this motion, do not suggest recklessness or intentional misconduct on the part of Defendant Boyd. Indeed, the defendant skier’s conduct in Cheong, skiing faster than his ability, arguably was more dangerous than that of Defendant Boyd here (and perhaps even reckless). Yet, the Court in that case still held, logically, that such conduct was a risk that plaintiff assumed by skiing. See Cheong, 946 P.2d at 819, 822-23. Plaintiff Fontaine’s complaint for negligence is thus barred by the doctrine of primary assumption of the risk. 5
5 In light of this conclusion, it is unnecessary [*30] for this Court to reach Defendant Boyd’s alternative argument that Plaintiff Fontaines’s claim is barred under New Hampshire’s comparative negligence statute.
IV.
Conclusion
Accordingly, for the reasons stated in this Decision, Defendant Boyd’s motion for summary judgment is granted. Counsel for the parties shall confer and submit forthwith for entry by this Court an agreed upon form of order and judgment that is consistent with this Decision.
G3 Ski Graphics contest ends September 30, get your graphics loaded!
Posted: September 25, 2011 Filed under: Skiing / Snow Boarding Leave a commentDesign, Upload & Win. Skigraphiks 2012 is Live!
G3’s Skigraphiks contest is back for another season, bigger and better than before. G3 Genuine Guide Gear Inc. invites amateurs and professionals alike to design a unique ski graphic and enter this year’s competition. The winning G3 Highball design for this first round will be available for purchase (at the end of the contest) exclusively at Backcountry.com. Get your entries in before September 30. Enter Now.
G3’s 2011/12 Ski Line-Up is Live. Take a Peek.
With Labour Day behind us, most people’s countdown to winter is officially on, and G3’s 2011/12 ski line up is live online. After seasons of R&D and refinement, it’s hard to contain our childish excitement when we unleash new gear for the ski community to have their way with. From our fattest ski ever or the versatile new Infidel , to improved classics like the award-winning Saint or light-weight but hard-charging ZenOxide, there’s new toys for everyone this season.
Snowboarders Asked For It. We Answered.
Life is too short for DIYs, so we applied our tried and true climbing skin designs and materials to an entirely new product – the new Alpinist Splitboard Skin – purpose built for backcountry snowboarders. Adopted by leading manufacturers, our new splitboard skins feature our patented tip and tail connectors for no-fuss transitions, superior glide and legendary uphill performance so you can focus on dropping in, not on catching up. See them for yourself.
Innovation Where It Really Counts
Avalanche probes were G3’s very first product and set the high design and performance standards that all G3 products now live up to. Continuing the spirit of innovation, we’ve completely redesigned our probes with our new quick deploy mechanism, making them easier or more effective than ever before. Along those same lines we’ve tweaked our Alpinist Skins with a highly user-friendly tail connector, and our ONYX AT Bindings have undergone further refinement.
G3 in Chile, & More Skiing Ahead
With skis to test but no snow in sight, we couldn’t help but take a wee trip to Chile for some high-priority ‘product testing’. The same day we launched our 2012 line-up, the boys were already busy in the field trying out gear for the winter 2013 and beyond… because someone had to do it.
We have no shortage of trips in the works for this fall and winter, so keep an eye on the Houseblend for plenty more tales of powdery revelry, cough, we meant product testing.
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G3’s New Highball
Introducing the new Highball from G3. It’s the biggest ski we’ve ever made, and we couldn’t resist featuring it Round 1 of our Skigraphiks Contest. Create & upload your design, spread the word, and cross your fingers. Enter to Win.
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Vail is leading the way for skiers & boarders to use their phones on the slope
Posted: September 20, 2011 Filed under: Ski Area Leave a commentNew Epic App allows you to add photos to your ski information.
Vail Resorts’ EpicMix tracks your vertical feet skied as well as the number of days you ski. This is all done through your Vail season pass, not your phone. The app is used to upload photos and track your stats.
You can also track your skiing with a new reusable lift ticket. Vail resorts are eliminating paper lift tickets. Instead, you purchase a reusable card that you can add ski days. The card will also track through the Epic system if you sign up.
The system uses scanners at the entrance or base of the lifts.
For the paranoid about you, you don’t have to sign up for the EpicMix. However, I suspect that if necessary Vail can still track you. Most resorts track lift tickets as much as they can. I’ve never seen the information used to do anything other than search for lost people or find someone. So although this is a little higher tech, it is not doing anything that is not already being done.
What do you think? Leave a comment.
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Ski Patrollers at Silverton grab first tracks……..
Posted: September 20, 2011 Filed under: Skiing / Snow Boarding Leave a commentBut seriously does that really count?
A few ski patrollers rode the lift Sunday and made some first turns on new snow claiming the first turns of the season.
However, if you want to catch turns, there is always some snow throughout the mountains. The question of how many turns and how deep starts to get me thinking that since that information was left out, we’re not talking first ski season tracks as much as last year’s left overs.
See Ski patrol takes first turns of the season
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Boondocking, Highmarking and Spatial Variability on the Agenda at Regional Avalanche Workshop
Posted: September 9, 2011 Filed under: Avalanche Leave a commentThe one-day gathering of prominent avalanche professionals and winter backcountry enthusiasts is open to the public
Whitefish, Montana – September 9, 2011 — The Northern Rockies Avalanche Safety Workshop (NRASW) will take place October 1, 2011 at 8:00am at Grouse Mountain Lodge in Whitefish. Five of the region’s prominent avalanche professionals will present practical safety information and research. Workshop attendees will learn about the current state of the snow safety industry, see demos of safety skills and meet people with a common goal – staying safe in avalanche-prone terrain. Organizers say this is the first time a workshop like this has been offered in the Flathead Valley.
“The number of winter backcountry enthusiasts in our area has increased dramatically in recent years, and skill levels have progressed exponentially with each new season,” says Ted Steiner, NRASW Chairman. “At the same time, our winter backcountry community has experienced an increase of avalanche-related incidents. This event is meant to help answer the ‘what can we do’ question when it comes to improving the margin of safety.”
The five speakers include:
· Don Sharaf is co-owner of the American Avalanche Institute and is the avalanche forecaster/lead guide for Valdez Heli-Ski Guides.
· Doug Richmond is the Ski Patrol Director at Bridger Bowl in Bozeman and has been patrolling throughout the west since 1973 with patrol experience in the Sierra and Colorado Rockies.
· Dr. Jordy Hendrikx is the Director of the Snow & Avalanche Laboratory and an Assistant Professor in the Department of Earth Sciences at Montana State University, in Bozeman.
· Lynne Wolfe is a certified AAA instructor at the American Avalanche Institute and editor of the Avalanche Review
· Mark Staples is an avalanche forecaster for the Gallatin N.F. Avalanche Center in Bozeman, focusing on avalanche awareness for motorized sports.
Session topics range from the technical (“Stability Tests and the Role of Spatial Variability” and “Highmarking, Boondocking and Hill Climbing”) to the personal. (“The Human Condition: How self-knowledge can help us make better decisions”) The full schedule for the day is available online.
Where: Grouse Mountain Lodge, Whitefish Montana When: Saturday, October 1, 2011, 7:30am to 6:30pm Cost: Pre-Register – $15, At the door- $20 Pre-register online, or mail a check to NRASW at PO Box 4203 Whitefish, MT. 59937. Registration fees are NON-REFUNDABLE.
Northern Rockies Avalanche Safety Workshop 2011 is a pre-season avalanche safety workshop dedicated to improving avalanche related decision making/skills for winter backcountry professionals and enthusiasts. Sponsored by American Avalanche Association, Flathead Nordic Ski Patrol, Backcountry Access.com, as well as a large number of local companies, national brands and others to whom we are grateful.
www.avalanchesafetyworkshop.com
FOR IMMEDIATE RELEASE
Contact: Hilary Hutcheson, PR Director
503-828-7074 hilary@outsidemedia.com
What do you think? Leave a comment.
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For those of you with too much money and living in Colorado
Posted: September 8, 2011 Filed under: Skiing / Snow Boarding Leave a commentColorado Ski Country USA Gold Passes Now Available
All-Access, Fully Transferable Passes to 21 Colorado Resorts
Denver, Colo. – August 31, 2011 – Colorado Ski Country USA (CSCUSA) today unveiled the 2011-12 Colorado Gold Pass, an exclusive pass that grants access to 21 CSCUSA resorts. This transferable pass, good for unlimited skiing and riding, can be purchased for $3,000.
The versatility of the Gold Pass, which gave last year’s holders access to a 10-month season, makes it the most coveted ski pass in the ski community. The Gold Pass does not have any blackout dates, which means resorts accept the pass every day of the season. Gold Pass holders also enjoy bypassing the ticket line with direct-to-lift access at just about every resort – a feature that any skier or rider appreciates when gearing up for Colorado’s frequent powder days. The unique transferability of the pass allows the owner to share the pass with employees, clients, family and friends, or any other acquaintances, affording all the opportunity to play in Colorado’s backyard for the entire 2011-12 season.
Available in limited quantities, the Gold Pass is the only pass of its kind in Colorado. “This pass is the gold standard of the ski industry,” explains Melanie Mills, president and CEO of Colorado Ski Country USA. “It features everything an individual could want: unlimited skiing, unlimited days, an unlimited roll of individuals with access, and no time constraints. The Gold Pass is the perfect tool for businesses and individuals that not only love taking in Colorado’s fantastic powder themselves, but who want to loan it out to clients and associates as a reward, enticement or valuable perk.”
CSCUSA Colorado Gold Pass purchasers also enjoy the added benefit of an insider’s access point to Colorado’s world-famous ski industry, complete with an invitation to Colorado Ski Country USA’s 49th Annual Meeting.
Members of CSCUSA that are honoring the Colorado Gold Pass for the 2011-12 season include: Arapahoe Basin, Aspen Highlands, Aspen Mountain, Buttermilk, Copper Mountain, Crested Butte, Purgatory at Durango Mountain Resort, Echo Mountain, Eldora, Howelsen Hill, Loveland Ski Area, Monarch Mountain, Powderhorn, Ski Cooper, Snowmass, SolVista Basin, Steamboat, Sunlight Mountain Resort, Telluride, Winter Park and Wolf Creek.
The Colorado Gold Pass is a fixture of the Colorado skiing experience; premiere
What do you think? Leave a comment.
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Shawn White, Olympic Snowboarding Gold Medalists now promoting Vail Resorts
Posted: September 6, 2011 Filed under: Ski Area Leave a commentThe Flying Tomato will promote all Vail Resorts
Vail, Beaver Creek, Breckenridge and Keystone in Colorado and Heavenly and Northstar in California/Nevada will be promoted. Northstar at Lake Tahoe will become his home mountain and primary training resort. At Northstar, White will design a 22’ half pipe.
White will design a special Epic Season Pass to be promoted on Facebook this fall.
This should put Vail resorts in the “big seat” for terrain parks.
See Vail Resorts Taps Shaun White as Spokesman
What do you think? Leave a comment.
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31 Million people call themselves skiers & boarders
Posted: July 14, 2011 Filed under: Skiing / Snow Boarding Leave a commentSurvey published by the Snowsports Industry Association
Thank heavens they all don’t show up at once, or even 10% of them in one day. That is more roughly 10% of the population of the US. ?
See Over 31 Million Americans Call Themselves Skiers, Snowboarders
What do you think? Leave a comment.
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OSHA issues $12,000 in fines for Ski Patrollers death to ski area.
Posted: May 25, 2011 Filed under: Avalanche, Ski Area Leave a commentWhile there they, they tack on another $5000 for a hand rail violation..
OSHA issued fines for $12,000 to Wolf Creek Ski Area over the death of one of their patrollers last fall. See Ski Patroller dies in Avalanche at Wolf Creek. If you have a major injury on the job or a death of an employee OSHA will show up and OSHA will fine you. Not help you, not understand what is going on if you are in the recreation business, just fine you.
In this case, they showed up to investigate the death of a ski patroller who died in an avalanche and issued another $5000 fine for a hand rail violation.
The first citation is for allowing an employee to do hazardous work, explosive work, alone. This is a serious violation and carries a $7000.00 fine.
The second citation is the railing citation which is a $5000 and another serious violation.
The third violation is also a serious violation which is allowing the explosives work to be done without a helmet. This also carries a $5000 fine.
I’m not sure what good a helmet is going to do in an Avalanche. I know it won’t do any good if there is an explosion. I’ve read almost 100 avalanche reports and investigations and never saw anything indicating a head injury was a major or contributing factor to the fatality or injury. Sure a helmet might protect you from minor injuries as you are tumbling, but it probably is not going to make a difference in whether you live or die.
If you wish to review the actual citation documents they can be found here.
My Response,
There are some rules that should not be broken no matter who you are or how much education or training you have. More importantly, no matter how short staffed or how much money you might be trying to save. Don’t do explosives work alone.
However, if you read the actual citation you will wonder how wearing helmets would have done anything. Here are the facts as OSHA found them in the OSHA citations. 
I have no idea what the exact cause of death is, however, OSHA would have put that in the report if it concerned a head injury.
At this point in time, between Jackson Hole’s fight (see 20 Year Veteran of Ski Patrol Dies performing avalanche control work) and this one. I would have to advise ski patrollers doing avalanche work to be issued helmets.
OSHA does not say what type of helmet so any ski helmet (Tupperware?) should work. It is stupid, but it will be cheaper until someone really wants to fight OSHA.
However, OSHA is correct, a helmet will stop head injuries, and injuries are as important to OSHA as stopping fatalities. Not a lot, not many, if any but a few.
What do you think? Leave a comment.
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Colorado Avalanche Season is not over
Posted: May 8, 2011 Filed under: Avalanche Leave a commentAvalanche Saturday May 7 in Officers Gulch closed bike path along I-70
In an article in the Denver Post, The Colorado Avalanche Information Center is predicting that we are going to see larger avalanches and avalanches in places where they are not normally found because of the snowpack this year.
See Colorado warns of larger-than-usual, more-damaging avalanches
What do you think? Leave a comment.
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Letter to the Editor: Winter Sports Technology International
Posted: May 4, 2011 Filed under: Skier v. Skier Leave a commentNick Bradley, Editor
Winter Sports Technology International
Abinger House, Church Street
Dorking,
Surrey
RH4 1DF
UK
Re: April 2011 Issue, Winter Sports Technology International
When Two Skiers or Snowboarders Collide on the Slopes, who is likely to be held responsible in the event of serious injury to one of them?
Dear Editor Bradley:
I enjoy your magazine and always let students and graduates know when it is available on the Ski Area Operations blog for Colorado Mountain College. However, I read with interest and a little concern your article about Skier collision liability in the April issue of Winter Sports Technology International. As an instructor in Risk Management in the Ski Area Operations at Colorado Mountain College. This month I added a disclaimer about your article when I posted information about it on the blog.
Mr. Exall statement that “Once the Ski patrol has dealt with the immediate aftermath of a collision, then becomes necessary to consider fault – who was to blame.” is incorrect. Most states a person involved in a skier collision assumes the risk of such a collision (Cheong v. Antablin, Calif 1997).[1] A code of conduct is not the standard of care for determining liability of a skier involved in a collision, it is only a public service announcement, a suggestion to people on how to behave on the slopes.
Unless a skier is skiing recklessly or intentionally, no liability exists for someone involved in a collision in most states (Collins v. Schweitzer, Inc., ID 1994).[2] Mr. Exall is correct in his statement of Colorado law, but that is the exception to the rule in the US.
Mr. Exall states Your Responsibility Code and liberally quotes the line the uphill skier has the right away. However, the code has 7 points and two of those are to look uphill before starting out and not to stop where you can’t be seen. The code does not put a priority on any of the statements because it was not created to find fault, it was only created as a guide for people on the slopes.
Consequently, someone who is downhill maybe liable for the injuries of someone they ski into, even if the other skier was uphill if they started skiing without checking up hill or had stopped where they cannot be seen.
Mr. Exall’s statement “The lesson is simple; whichever rules you choose to apply a court will find in favour of any skier or rider who is run into by another skier.” is just wrong in the US (Fontaine v. Boyd, RI 2011).[3] Skiers can both not be at fault or be equally at fault (Stewart v. McKarnin, ID 2005).[4] Many states do not allow suits between parties in a collision on the slopes such as Pennsylvania (Hughes v. Seven Springs Farm, Inc. PA 2000) and Utah (Ricci v. Schoultz, UT 1998).[5][6].
The issues of liability in any collision very by state, by the parties and by the way, the person was injured. However, you cannot make blanket statements that someone is always to blame or that someone should be to blame when two people collide on the slopes.
Sincerely,
James H. Moss, J.D.
Attorney at Law
Instructor Ski Area Operations Risk Management
Colorado Mountain College
[1] Cheong v. Antablin, 16 Cal. 4th 1063; 946 P.2d 817; 68 Cal. Rptr. 2d 859; 1997 Cal. LEXIS 7662; 97 Cal. Daily Op. Service 8851; 97 Daily Journal DAR 14317
[2] Collins v. Schweitzer, Inc., 21 F.3d 1491; 1994 U.S. App. LEXIS 8692; 94 Cal. Daily Op. Service 2889; 94 Daily Journal DAR 5550 (Ninth Circ 1994)
[3] Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27
[4] Stewart v. McKarnin, 141 Idaho 930; 120 P.3d 748; 2005 Ida. App. LEXIS 81
[5] Hughes v. Seven Springs Farm, Inc. 563 Pa. 501; 762 A.2d 339; 2000 Pa. LEXIS 2894
[6] Ricci v. Schoultz, 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745
What do you think? Leave a comment.
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I once thought you had to take an IQ test to run to be a state legislator. You could run only if you flunk the test.
Posted: May 3, 2011 Filed under: Ski Area Leave a commentOr probably, If I make enough noise, no matter how wrong, I can get re-elected.
A Senator in California is pushing a bill to require helmets on kids at ski areas. His statements to the press, if quoted correctly are made to flame the emotions of people and not based on either research or intelligence.
SB 105 will significantly reduce instances of traumatic brain injury or death for such a vulnerable population
Despite repeated warnings from public health experts, professional athletes, and ski resorts, each winter brings news of hundreds of unnecessary tragedies for the failure to wear a helmet
Right, ski resorts are saying that helmets will protect kids.
However this statement by the author of the article is just plain dumb.
According to the National Ski Areas Association, 19 of 38 people who died on ski slopes in the 2009-2010 season were not wearing helmets at the time of the injury
Correct, that also means that 19 of the 38 people who died last season on ski slopes where wearing helmets. Your chances of dying wearing a helmet are exactly the same as not wearing a helmet.
“How can California not set minimum standards for children’s ski safety when the data is so conclusive that helmets save lives and reduce severity of head injuries,” said Yee
What data is he looking at? His own quote in the article proves his statement is wrong.
However I doubt that this Senator really cares about kids, he just cares about getting re-elected and he can parade this around as something he did to protect kids. Protect them from skiing, not from injuries.
I tried contacting Senator Yee to show him some research but he only accepts email from people in his district. I mean why listen to reason when you can hide behind ignorance.
See Ski Helmet Law Approved By Senate
Do Something
Wear a helmet; it might help prevent head injuries. It won’t keep you alive. More importantly, next time you walk into a ballot box or deal with a politician, try and get the truth, not just platitudes.
For other articles on the issue see:
More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour
Skiing/Boarding Helmets and what is the correct message
California bill to require helmets on skiers and boarders under age 18 dies lacking governor’s signature.
What do you think? Leave a comment.
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2010-11 Ski Season Ski Area Fatalities
Posted: April 27, 2011 Filed under: Ski Area Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
Yellow Highlighted Fatality was an employee at work
If this information is incorrect or incomplete please let me know. Thanks.
| # | Date | Resort | State | Age | Skier Ability | Ski/ Tele /Boarder | Cause of Death | Helmet |
| 1 | 11/22 | Wolf Creek Ski Area | CO | 41 | Expert | Skier | No | |
| 2 | 12/2 | Snowmass | CO | 22 | Skier | Yes | ||
| 3 | 12/12 | Cannon Mountain | NH | 18 | Skier | No | ||
| 4 | 12/18 | Wolf Creek Ski Area | CO | 35 | Expert | Boarder | hyperextended his neck backward, rupturing an artery | |
| 5 | 12/19 | Cannon Mountain ski resort | NH | 31 | Boarder | |||
| 6 | 12/21 | Beaver Creek Ski Area | CO | 59 | Skier | blunt force trauma | Yes | |
| 7 | 12/24 | Hogadon Ski Area | WY | 5 | Skier | massive chest injuries | Yes | |
| 8 | 12/24 | Hogadon Ski Area | WY | 22 | Boarder | massive chest injuries | No | |
| 9 | 12/26 | Aspen Mountain | CO | 77 | Expert | Skier | suffering a broken | |
| 10 | 12/27 | Mountain High ski resort | CA | 24 | Beginner | Boarder | No | |
| 11 | 12/28 | Discovery Ski Area | MT | 21 | Expert | Skier | blunt force trauma injuries | Yes |
| 12 | 12/29 | China Peak Ski Area | CA | 29 | Boarder | asphyxiation | ||
| 13 | 12/29 | Whitefish Mountain Resort | MT | 16 | Skier | Taken off life support 1/2/11 | ||
| 14 | 1/2 | Keystone Ski Resort | CO | 38 | Boarder | blunt force trauma | Yes | |
| 15 | 1/9 | Whitefish Mountain Resort | MT | 29 | Boarder | Yes | ||
| 16 | 1/9 | Snowbowl | AZ | 22 | Boarder | |||
| 17 | 1/11 | Heavenly Mountain Resort | 57 | blunt force trauma to the left side of her chest | ||||
| 18 | 1/12 | Jackson Hole Mountain Resort | WY | 18 | Skier | Instantly upon hitting tree | ||
| 19 | 1/15 | Sugarloaf | ME | 16 | Skier | Yes | ||
| 20 | 1/16 | Windham Mountain | NY | 18 | Beginner | Skier | Extensive Head Injuries | No |
| 21 | 1/19 | Mt. Rose Resort | NV | 15 | Boarder | Head injuries | No | |
| 22 | 1/22 | Granlibakken Resort | CA | 22 | Boarder | blunt force trauma | ||
| 23 | 1/26 | Keystone Resort | CO | 22 | severe blunt force trauma | No | ||
| 24 | 1/27 | Anthony Lakes Ski Area | OR | 24 | collided with a tree and suffered head and neck injuries | |||
| 25 | 1/28 | Crystal Mountain | WA | 67 | severed his spinal cord | |||
| 26 | 1/30 | Mount Hood Meadows Ski Resort | OR | 41 | Skier | No | ||
| 27 | 2/4 | Hunt Hollow | NY | 54 | Yes | |||
| 28 | 2/4 | Hunt Hollow Ski Club | NY | 54 | Skier | Yes | ||
| 29 | 2/6 | Eldora Mountain Resort | CO | 35 | Expert | Boarder | ||
| 30 | 2/9 | Sun Valley Resort | ID | 49 | Skier | trauma to his head and chest | No | |
| 31 | 2/11 | Windham Mountain Ski Resort | NY | 69 | Novice | Skier | extensive head injuries | No |
| 32 | 2/11 | Cooper Mountain Ski Area | CO | 21 | fractured skull, a fractured right knee, a broken leg, a broken wrist, many facial fractures and lacerations to his liver and kidney | |||
| 33 | 2/12 | Snowshoe Mountain Resort | WV | 22 | ||||
| 34 | 2/16 | Sun Valley Resort | ID | |||||
| 35 | 2/17 | The Yellowstone Club | MT | 45 | ||||
| 36 | 2/18 | Spirit Mountain | WI | 12 | Skier | |||
| 37 | 2/20 | Mount Shasta | CA | 23 | ||||
| 38 | 2/23 | Arapahoe Basin | CO | 32 | Skier | blunt force trauma to the chest | No | |
| 39 | 2/27 | Northstar-at-Tahoe | CA | 30 | Boarder | impact of hitting a tree or suffocation from landing headfirst in the snow bank | No | |
| 40 | 2/28 | California’s Kirkwood Ski area | CA | 25 | Skier | internal bleeding | ||
| 41 | 3/11 | Snowmass Mtn | CO | 73 | Skier | multiple systems trauma | ||
| 42 | 3/14 | Beaver Creek Ski Area | CO | 18 | Expert | Skier | died from head trauma | Yes |
| 43 | 3/16 | Welch Village Ski Area | MN | 65 | Skier | |||
| 44 | 3/16 | Alyeska Resort | AK | 53 | Skier | |||
| 45 | 3/17 | Howelsen Hill Ski Area | CO | 19 | Skier | |||
| 46 | 3/4 | Blue Mountain Ski Resort | PA | 73 | Skier | head injury | Yes | |
| 47 | 3/22 | Eldora Mountain Resort | CO | 21 | Skier | No | ||
| 48 | 3/26 | West Mountain Ski Resort | NY | 17 | Skier | head injuries and went into cardiac arrest | No | |
| 49 | 3/25 | Winter Park Resort | CO | 39 | Skier | Hit a tree | Yes | |
| 50 | 4/8 | Winter Park Resort | CO | 11 | Skier | Collision with 2 other skiers | Yes |
First Update: Ski Area Fatalities -2010-11 Ski Season
Second Update: Ski Area Fatalities -2010-11 Ski Season to date: 1/5/1
Third Update: Ski Area Fatalities -11 Ski Season to date: 1/14/11
Fourth Update: Ski Area Fatalities 2010 -11 Ski Season to date: 3/2/11
Fifth Update: Ski Area Fatalities -2010-11 Ski Season to date: 3/26/11
What do you think? Leave a comment.
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NSAA and standards
Posted: April 26, 2011 Filed under: Ski Area Leave a commentNational Ski Area Association has this posted on their website.
The outdoor industry keeps striding head long into a tunnel that will lead to litigation over the standards they are writing. Yet other industries who have been sued a lot more are fighting to stay away.
This is part of a letter to members by the National Ski Area Association. Ski areas have been sued a lot and know the real case about standards.
IT IS CRITICAL TO STRESS THAT THESE ARE NOT INTENDED TO SERVE AS STANDARDS IN ANY WAY FOR SKI RESORTS – THESE ARE SUGGESTIVE TEMPLATES FOR RESORTS TO REVIEW, ANALYZE, AND MAKE INDIVIDUAL DETERMINATIONS AS TO HAZARDS, ABATEMENT ACTIONS, AND SAFETY EQUIPMENT UNIQUE TO YOUR RESORT.
This is the exact quote in the letter.
So?
If the NSAA does not write standards for its members because of the litigation nightmare it creates why does the outdoor industry.
What do you think? Leave a comment.
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Local arrested for not leaving ski area when asked.
Posted: April 20, 2011 Filed under: Ski Area Leave a commentThis is being reported as a skiing uphill issue. It’s probably not now.
Jackson Hole local Roland Fleck was arrested February 5, 2011. He had skied uphill and was told not to by the ski patrol. After a 3.5 hour confrontation with the ski patrol and local deputies, he was arrested. During those 3.5 hours, he was even offered a free lift ticket.
This is not a case of the ski patrol stopping someone from skiing uphill. Although I have no problem with a ski area stopping uphill skiers or downhill skiers, for that matter, this case does not seem to end with that issue.. This is a case where someone decides to pick a fight. I’ve never known law enforcement or anyone to spend 3.5 hours talking to someone before arresting them. 3.5 minutes would be a world record before you are on the ground and cuffed.
The ski area has the right to control who has access to the land. The land owner is the US Forest Service which manages the land for the US. (The land is not owned by the people of the US.) The land has been “leased” to the ski area for the purpose of a ski area. The Ski area pays the US Forest Service for the right to run the ski area. The ski area has control over that land subject to the US Forest Service agreement.
Compare it to a landlord tenant situation. The landlord owns the building. The tenant pays the landlord for the right, as set out in the lease, to the building. Under the lease, the tenant has 100% control over the building and can allow someone in or throw them out at the tenant’s will. This may even allow them to allow or deny access to the landowner. It is dependent upon the lease. It does not matter who owns the land when it is leased.
Either the ski area has the right to do what it wants, as allowed in the lease or not. We may be the eventual owners of the land, but we have given up that right to access the land because it is managed for us by the Federal Government through the USFS which leased the land to Jackson Hole Mountain Resort.
Look at it this way. If the defendant was hurt on the land while using the resort who would he sue? Us? no. The US Forest Service? No. He would sue the ski area. Because of that, the ski area should have the right to protect itself and protect the people it has charged to access the land.
See 7 patrollers, 2 deputies spend 3 hours trying to stop, cuff and toboggan Fleck off mountain.
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Ski Area Fatalities -2010-11 Ski Season to date: 4/18/11
Posted: April 18, 2011 Filed under: Skiing / Snow Boarding | Tags: fatality, helmet, ski area, skiing, snowboarding Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. If you have a source for information on any fatality please leave a comment.
Yellow Highlighted Fatality was an employee at work
If this information is incorrect or incomplete please let me know. Thanks.
| # | Date | Resort | State | Age | Skier Ability | Ski/ Tele /Boarder | Cause of Death | Helmet |
| 1 | 11/22 | Wolf Creek Ski Area | CO | 41 | Expert | Skier | No | |
| 2 | 12/2 | Snowmass | CO | 22 | Skier | Yes | ||
| 3 | 12/12 | Cannon Mountain | NH | 18 | Skier | No | ||
| 4 | 12/18 | Wolf Creek Ski Area | CO | 35 | Expert | Boarder | hyperextended his neck backward, rupturing an artery | |
| 5 | 12/19 | Cannon Mountain ski resort | NH | 31 | Boarder | |||
| 6 | 12/21 | Beaver Creek Ski Area | CO | 59 | Skier | blunt force trauma | Yes | |
| 7 | 12/24 | Hogadon Ski Area | WY | 5 | Skier | massive chest injuries | Yes | |
| 8 | 12/24 | Hogadon Ski Area | WY | 22 | Boarder | massive chest injuries | No | |
| 9 | 12/26 | Aspen Mountain | CO | 77 | Expert | Skier | suffering a broken | |
| 10 | 12/27 | Mountain High ski resort | CA | 24 | Beginner | Boarder | No | |
| 11 | 12/28 | Discovery Ski Area | MT | 21 | Expert | Skier | blunt force trauma injuries | Yes |
| 12 | 12/29 | China Peak Ski Area | CA | 29 | Boarder | asphyxiation | ||
| 13 | 12/29 | Whitefish Mountain Resort | MT | 16 | Skier | Taken off life support 1/2/11 | ||
| 14 | 1/2 | Keystone Ski Resort | CO | 38 | Boarder | blunt force trauma | Yes | |
| 15 | 1/9 | Whitefish Mountain Resort | MT | 29 | Boarder | Yes | ||
| 16 | 1/9 | Snowbowl | AZ | 22 | Boarder | |||
| 17 | 1/11 | Heavenly Mountain Resort | 57 | blunt force trauma to the left side of her chest | ||||
| 18 | 1/12 | Jackson Hole Mountain Resort | WY | 18 | Skier | Instantly upon hitting tree | ||
| 19 | 1/15 | Sugarloaf | ME | 16 | Skier | Yes | ||
| 20 | 1/16 | Windham Mountain | NY | 18 | Beginner | Skier | Extensive Head Injuries | No |
| 21 | 1/19 | Mt. Rose Resort | NV | 15 | Boarder | Head injuries | No | |
| 22 | 1/22 | Granlibakken Resort | CA | 22 | Boarder | blunt force trauma | ||
| 23 | 1/26 | Keystone Resort | CO | 22 | severe blunt force trauma | No | ||
| 24 | 1/27 | Anthony Lakes Ski Area | OR | 24 | collided with a tree and suffered head and neck injuries | |||
| 25 | 1/28 | Crystal Mountain | WA | 67 | severed his spinal cord | |||
| 26 | 1/30 | Mount Hood Meadows Ski Resort | OR | 41 | Skier | No | ||
| 27 | 2/4 | Hunt Hollow | NY | 54 | Yes | |||
| 28 | 2/4 | Hunt Hollow Ski Club | NY | 54 | Skier | Yes | ||
| 29 | 2/6 | Eldora Mountain Resort | CO | 35 | Expert | Boarder | ||
| 30 | 2/9 | Sun Valley Resort | ID | 49 | Skier | trauma to his head and chest | No | |
| 31 | 2/11 | Windham Mountain Ski Resort | NY | 69 | Novice | Skier | extensive head injuries | No |
| 32 | 2/11 | Cooper Mountain Ski Area | CO | 21 | fractured skull, a fractured right knee, a broken leg, a broken wrist, many facial fractures and lacerations to his liver and kidney | |||
| 33 | 2/12 | Snowshoe Mountain Resort | WV | 22 | ||||
| 34 | 2/16 | Sun Valley Resort | ID | |||||
| 35 | 2/17 | The Yellowstone Club | MT | 45 | ||||
| 36 | 2/18 | Spirit Mountain | WI | 12 | Skier | |||
| 37 | 2/20 | Mount Shasta | CA | 23 | ||||
| 38 | 2/23 | Arapahoe Basin | CO | 32 | Skier | blunt force trauma to the chest | No | |
| 39 | 2/27 | Northstar-at-Tahoe | CA | 30 | Boarder | impact of hitting a tree or suffocation from landing headfirst in the snow bank | No | |
| 40 | 2/28 | California’s Kirkwood Ski area | CA | 25 | Skier | internal bleeding | ||
| 41 | 3/11 | Snowmass Mtn | CO | 73 | Skier | multiple systems trauma | ||
| 42 | 3/14 | Beaver Creek Ski Area | CO | 18 | Expert | Skier | died from head trauma | Yes |
| 43 | 3/16 | Welch Village Ski Area | MN | 65 | Skier | |||
| 44 | 3/16 | Alyeska Resort | AK | 53 | Skier | |||
| 45 | 3/17 | Howelsen Hill Ski Area | CO | 19 | Skier | |||
| 46 | 3/4 | Blue Mountain Ski Resort | PA | 73 | Skier | head injury | Yes | |
| 47 | 3/22 | Eldora Mountain Resort | CO | 21 | Skier | No | ||
| 48 | 3/26 | West Mountain Ski Resort | NY | 17 | Skier | head injuries and went into cardiac arrest | No | |
| 49 | 3/25 | Winter Park Resort | CO | 39 | Skier | Hit a tree | Yes | |
| 50 | 4/8 | Winter Park Resort | CO | 11 | Skier | Collision with 2 other skiers | Yes |
First Update: Ski Area Fatalities -2010-11 Ski Season
Second Update: Ski Area Fatalities -2010-11 Ski Season to date: 1/5/1
Third Update: Ski Area Fatalities -11 Ski Season to date: 1/14/11
Fourth Update: Ski Area Fatalities 2010 -11 Ski Season to date: 3/2/11
Fifth Update: Ski Area Fatalities -2010-11 Ski Season to date: 3/26/11
What do you think? Leave a comment.
Copyright Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
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Numerous Lift Maintenance Seminars this Spring for the Ski Industry
Posted: April 15, 2011 Filed under: Ski Area Leave a commentI’ll be speaking at one of them, the Rocky Mountain Lift Association Meeting May 9-12.
Ski Area Management (SAM) magazine is reporting numerous lift maintenance seminars for this spring.
I can never tell you enough how important it is for the industry and maybe your career to attend seminars like this. Besides being kept up to date on what is going on in the industry and learning new ways to work, you may find your next Job.
SAM is reporting the seminars as:
| 34th Lift Maintenance Seminar (LMS) | Apr. 19-21 | http://www.masslms.com |
| PNSAA Mountain Operations Conference | Apr. 26-28 | http://www.nsaa.org |
| RMLA Spring Conference | May 9-12 | http://www.nsaa.org |
| CSIA/Sierra College | June 7-11 | http://www.csia.biz |
| Hall maintenance workshops by Doppelmayr | ||
| Greek Peak, N.Y. | May 25-26 | http://www.doppelmayrusa.com |
| Afton Alps, WI. | June 21-22 | http://www.doppelmayrusa.com |
See: Lift Maintenance Seminars Are On Growth Path
Do Something
If you are in the ski industry and want to say in the ski industry and/or move up in the ski industry get yourself to one of these conferences to stay on top of your industry.
What do you think? Leave a comment.
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