Why is the Standard of Care lower in Skiing than in other Sports?
Posted: April 6, 2016 Filed under: Assumption of the Risk, Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: Assumed Risk, assumption of the risk, Collision, Ordinary Negligence, Reckless, skier v. skier, skiing, snowboarding, Standard of Care Leave a commentSport and Recreation Law Association Annual conference 2016
Merry Moiseichik, R.Ed, J.D, University of Arkansas
Jim Moss, Esq, Recreation Law
Why is the Standard of Care lower in Skiing than in other Sports?
This presentation looks at the different standards of care applied to collisions between people on a ski slope. Some states apply a negligence standard, some a reckless standard and some say the participants assume the risk of their injury in the sport.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Snowboarding, Collision, Skier v. Skier, Standard of Care, Ordinary Negligence, Reckless, Assumed Risk, Assumption of the Risk
Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Posted: April 4, 2016 Filed under: Colorado, Ski Area | Tags: Chair Lift, Colorado Premises Liability Act, Comfort Bar, Premises Liability, Summer, Vail Leave a commentCase is a major change in the liability of a ski area to the skiers and boarders who ride any lift in Colorado.
Raup, v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 11499
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Carolyn S. Raup
Defendant: Vail Summit Resorts, Inc.
Plaintiff Claims: Premises Liability Act, and for negligence, including negligence per se
Defendant Defenses: The negligence claims are Colorado Premises Liability Act
Holding: for the Defendant
Year: 2016
This case may be ongoing the decision may not be final. However, the ruling is game changing and changes a large section of the law in Colorado.
The plaintiff was riding a chairlift at one of the defendants Vail resorts during the summer. The Colorado Tramway Act requires lifts operated during the summer to have a comfort bar available to riders. As the plaintiff and two other riders were approaching the top terminal, they had intended to ride the lift back down.
The liftie (top terminal lift employee), ran out and started yelling at the rides to raise the safety bar and exit the lift.
The plaintiff and friends did not understand or know that riding around the terminal would trigger the emergency stop. The riders also did not know that the download capacity of a lift is very different from the upload capacity of the lift. Many times that download capacity is 25 to 33% of the upload capacity. That means instead of loading every chair downhill you may only be allowed to load every third or fourth chair.
The other two riders were able to exit the lift running down the exit ramp. The plaintiff fell suffering severe injuries. The plaintiff brought this suit in the Federal District Court of Colorado. Vail moved to dismiss the claims of negligence and negligence per se brought by the plaintiff.
The court granted Vail’s motion with the following analysis.
Analysis: making sense of the law based on these facts.
The court first looked at the requirements for the plaintiff to survive a motion to dismiss under Colorado law.
To survive a motion to dismiss under Rule 12(b)(6), the party asserting the claim “must allege that ‘enough factual matter, taken as true, [makes] his claim for relief … plausible on its face.'” (quotation and internal quotation marks omitted). “A claim has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’
Thus, a party asserting a claim “must include enough facts to ‘nudge[] h[er] claims across the line from conceivable to plausible.
A motion to dismiss is filed normally before the defendant has filed an answer to the complaint. The motion is filed when their allegations in the complaint are not supported by the law or misstate the law. The court rarely grants these motions because as started above, there must be just a plausible claim to survive.
In this case, the issue was the claims of the plaintiff were not available under the law. Meaning the law did not allow the plaintiff to make those types of claims against a defendant.
In this case, the Colorado Premises Liability Act, the act which controls the liability of a landowner to people on his land, was the only way the plaintiff could sue. More importantly, did the Colorado Premises Liability Act preclude not only common law claims (negligence) against a landowner but also claims brought under the Colorado Skier Safety Act based on a ski area being the landowner.
An earlier interpretation by the Colorado Supreme Court in two different cases preempted the common law claims. “
I agree with Vail that the Vigil and Lombard cases make clear that all common law claims involving landowner duties, including negligence and negligence per se claims, are abrogated by the Premises Liability Act which provides the exclusive remedy.
The plaintiff argued the Colorado Tramway Act still allowed negligence claims. The act was interpreted by a Supreme Court Decision in Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 80 (Colo. 1998), which held the ski area owed the highest degree of care to a rider on a chair lift, that of a common carrier.
However, the court found that Bayer had preempted by the Vigil act quoted above.
Six years after Bayer, the Colorado Supreme Court in Vigil made clear that the Premises Liability Act preempted all common law claims and provided the sole method of recovering against a landowner. Vigil, 103 P.3d at 328. The fact that Vigil did not reference Bayer does not change this result.
The plaintiff then argued the acts of the leftie were negligent and created a separate claim for negligence. However, again, the court found the actions were covered by the Premises Liability Act.
Vail’s duty of care to invitees such as Plaintiff is defined under the Premises Liability Act, which makes clear that it applies in actions by a person who alleges injury while on the property of another and by reasons of either the condition of the property or activities conducted on the property. This encompasses the allegations at issue in this case, including the injuries allegedly sustained by Plaintiff by activities of Vail’s employee in ordering Plaintiff and her fellow passengers to disembark from the chairlift. As such, the Premises Liability Act provides the only standard for recovery.
The court granted Vail’s motion to dismiss and dismissed the plaintiff’s negligence claims leaving only the premises liability claims.
So Now What?
Does this mean there is now a lower duty owed to riders of chairlifts in Colorado because they are classified as invitees under the Colorado Premises Liability Act? I don’t know.
However, it is clear; the Colorado Premises Liability Act supersedes all other recreational specific statutes that then limits the recovery against most recreation providers due to injuries on the land (or waters?).
REMEMBER, THIS CASE IS NOT OVER AND HAS NOT BEEN APPEALED. THE DECISION REVIEWED HERE COULD CHANGE.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Vail, Summer, Chair Lift, Comfort Bar, Premises Liability, Colorado Premises Liability Act,
Summer 2015 Commercial Fatalities
Posted: March 30, 2016 Filed under: Uncategorized Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of December 31, 2015. Thanks.
Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.
Red is a probable death due to medical issues unrelated to the activity
Dark blue is a death of an employee while working
|
Date |
Activity |
State |
Location |
What |
Age |
Sex |
Location 2 |
Reference |
|
Company |
|
3/2 |
Backcountry Skiing |
AK |
Chugach Mountains |
Calving Glacier |
28 |
M |
|
|
Chugach Powder Guides |
|
|
5/22 |
Whitewater Rafting |
CO |
Clear Creek |
Raft Flipped |
47 |
F |
M258.5 |
|
All American Adventures |
|
|
5/31 |
Whitewater Rafting |
MT |
Gallatin River |
Raft Flipped |
43 |
M |
House Rock |
|
Geyser Whitewater Expedition |
|
|
6/5 |
Whitewater Rafting |
UT |
Colorado River, Westwater |
Raft Flipped |
50 |
M |
Funnel Falls |
|
|
|
|
6/10 |
Whitewater Rafting |
CO |
Arkansas River, Brown’s Canyon, |
Raft high sided |
11 |
M |
Big Drop |
|
The Adventure Company |
|
|
6/11 |
Zip Line |
NC |
Camp Cheerio |
|
12 |
F |
|
|
YMCA |
|
|
|
Whitewater Rafting |
CO |
Arkansas River |
|
52 |
M |
Salt Lick |
|
|
|
|
|
Whitewater Rafting |
CO |
Animas |
|
|
M |
|
|
|
Mild to Wild |
|
6/13 |
Whitewater Rafting |
CO |
Roaring Fork River |
|
44 |
F |
|
Blazing Adventures |
||
|
6/22 |
Hiking on Whitewater Rafting Trip |
AZ |
Colorado River |
Missing after hike |
22 |
M |
Pumpkin Springs, Swamper on trip |
Tours West |
||
|
6/23 |
Wakeboarding |
GA |
Carters Lake |
|
23 |
M |
|
|
Cohutta Springs Youth Camp |
|
|
|
Whitewater Rafting |
NM |
Rio Grande |
|
52 |
M |
|
|
|
|
|
7/4 |
Whitewater Rafting |
CO |
Clear Creek |
|
20 |
M |
|
|
Mile High Rafting |
|
|
7/6 |
Whitewater Rafting |
CO |
Poudre River |
Medical |
76 |
M |
|
|
A1 Wildwater Rafting |
|
|
7/13 |
Ropes Course |
SC |
Freebird |
|
16 |
F |
|
|
Carolina Point Young Life Camp |
|
|
7/14 |
Zip Line |
UT |
Zip line |
Fell off platform |
54 |
M |
Grabbed guest who pulled him off |
|
Kanab Zipline |
|
|
7/18 |
Whitewater Rafting |
CO |
Dizzy Lizzy |
Fell out of raft |
35 |
M |
|
|
|
|
|
9/25/15 |
Zip Line |
MI |
Huron County |
Fell from zip line |
85 |
M |
|
|
Bay Shore Camp |
|
|
9/27 |
Cycling Time Trial |
CA |
Yolo County |
Hit by car |
57 |
M |
County Road 19, west of Interstate 505 near Esparto |
|
Northern California Nevada Cycling Association |
If you are unable to read the chart, you can download a copy of this as a PDF here.
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2016 Recreation Law (720) Edit Law
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition, Colorado River, Westwater Canyon, Funnel Falls, Bay Shore Camp
Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662
Posted: March 30, 2016 Filed under: Colorado, Legal Case, Ski Area | Tags: Chair Lift, Common Carrier, Invitee, Keystone, Landowner, Liftie, Neglignece, Premises Liability Act, Vail Leave a commentBrigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662
Teresa Brigance, Plaintiff, v. Vail Summit Resorts, Inc., Defendant.
Civil Action No. 15-cv-1394-WJM-NYW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2016 U.S. Dist. LEXIS 31662
March 11, 2016, Decided
March 11, 2016, Filed
COUNSEL: [*1] For Teresa Brigance, Plaintiff: Trenton Jeffrey Ongert, Bloch & Chapleau, LLC, Denver, CO.
For Vail Summit Resorts, Inc., Defendant: Edward Timothy Walker, Samuel Nathan Shapiro, Vail Resorts Management Company, Legal Department, Broomfield, CO.
JUDGES: William J. Martínez, United States District Judge.
OPINION BY: William J. Martínez
OPINION
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S PARTIAL MOTION TO DISMISS AMENDED COMPLAINT
Plaintiff Teresa Brigance (“Plaintiff”) brings this action against Defendant Vail Summit Resorts, Inc. (“Defendant”). This matter is before the Court on Defendant’s Motion to Dismiss Amended Complaint (“Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 17.) Defendant filed the Motion on August 28, 2015. (Id.) On September 25, 2015, Plaintiff filed her Response to the Motion. (ECF No. 27.) Defendant filed its Reply on October 13, 2015. (ECF No. 31.) For the reasons set forth below, the Motion is granted in part and denied in part.
I. STANDARD OF REVIEW
Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations and view them [*2] in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).
II. BACKGROUND
The following allegations are taken from Plaintiff’s Amended Complaint (“Complaint”). (ECF No. 6.) The Court assumes these allegations to be true for purposes of this motion.
On March 23, 2015, Plaintiff visited the Keystone ski area, which is owned and operated by Defendant. (Id. ¶ 9.) Plaintiff participated in a ski lesson which was taught by Megan McKinney, an employee of Defendant. (Id. ¶ 6.) Ms. McKinney instructed Plaintiff on the procedures for getting on and off the chair lift. (Id. ¶ 7.) The chair lift was operated by an unknown chair lift operator who was also an employee of Defendant and whom the Court will refer to as John Doe. (Id. ¶ 26.) While unloading from the chair lift, Plaintiff’s ski boot became wedged between the chair and the ground at the [*3] unloading area, causing injury to Plaintiff. (Id. ¶ 8.)
Plaintiff filed this lawsuit on June 30, 2015. (ECF No. 1.) Plaintiff then filed an Amended Complaint on July 27, 2015. (ECF No. 6.) Plaintiff asserted numerous claims arising out of events related to the chair lift incident. (See id.) Plaintiff asserts claims for (1) negligence, (2) negligence per se, (3) negligent supervision/training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability pursuant to Colorado Revised Statutes § 13-21-115. (See id.)
III. ANALYSIS
Defendant, through its Motion, moves to dismiss all of Plaintiff’s claims except for the premises liability claim. (ECF No. 17.) Defendant argues that Plaintiff’s claim for negligence per se (Claim Two) should be dismissed for failure to state a claim. (Id. at 4.) Defendant further contends that Plaintiff’s claims for negligence (Claim One) and negligence per se should be dismissed as they are preempted by the Premises Liability Act. (Id. at 2.) Lastly, Defendant argues that Plaintiff’s claims for negligent supervision/training, negligence (respondeat superior), and negligent hiring should be dismissed as duplicative. (Id. at 6.) The Court will discuss these arguments in turn.
A. Negligence Per Se
[*4] Defendant argues that Plaintiff fails to state a claim for negligence per se. (ECF No. 17 at 4.) “In contrast to negligence, negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes the plaintiff’s injury.” Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo. 2002). Plaintiff must also show that the statute was intended to protect against the type of injury the plaintiff suffered and that the plaintiff is a member of the group of persons the statute was intended to protect. Id. If those requirements are met, “then the statute conclusively establishes the defendant’s standard of care and violation of the statute is a breach of [defendant’s] duty.” Id.
In its Motion, Defendant asserts that Plaintiff’s Amended Complaint fails to identify any statutory standard of care that has been violated. (ECF No. 17 at 4.) Plaintiff identifies two statutes as the basis of her negligence per se claim: the Skier Safety Act and the Passenger Tramway Safety Act. (ECF No. 6 ¶¶ 18-19.)
As to the Skier Safety Act, certain violations of that Act do constitute negligence per se. See Stamp v. Vail Corp., 172 P.3d 437, 443 (Colo. 2007). Under the Skier Safety Act, “a violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” Colo. Rev. Stat. § 33-44-104(2). However, Plaintiff fails to identify any requirement of that article–the Skier Safety Act–which has been violated. Instead, Plaintiff alleges that Defendant violated § 25-5-706(3)(d)–(e) of the Passenger Tramway Safety Act.1 Colo. Rev. Stat. § 25-5-706(3)(d)–(e). (See also ECF No. 6 ¶¶ 18, 20-21.) Section 25-5-706(3)(d)–(e) identifies certain situations in which the passenger tramway safety board may take disciplinary action. However, § 25-5-706(3)(d)–(e) is not a [*5] rule or regulation promulgated by the passenger tramway safety board and therefore Plaintiff does not properly state a claim for negligence per se under the Skier Safety Act.
1 Plaintiff identifies this language as coming from § 25-5-706(2)(d)–(e). However, it is clear that Plaintiff is actually referring to § 25-5-706(3)(d)–(e), since the language Plaintiff quotes is from that subsection of the statute.
In its response to the Motion, Plaintiff argues that the Passenger Tramway Safety Act provides a statutory standard of care independent of the Skier Safety Act. Specifically, Plaintiff stresses that § 25-5-706(3)(d)–(e) allows for disciplinary action to be taken if there is either “[w]illful or wanton misconduct in the operation or maintenance of a passenger tramway” or “[o]peration of a passenger tramway while a condition exists in the design, construction, operation, or maintenance of the passenger tramway which endangers the public health, safety, or welfare, which condition was known, or reasonably should have been known, by the area operator.”
Nevertheless, this language does not provide a statutory standard of care which is adequate to support Plaintiff’s claim for negligence per se. This Court has previously held that a claim for negligence per se requires a [*6] statute, “the violation of which can be clearly established.” Hendrickson v. Doyle, F. Supp. 3d , , 2015 U.S. Dist. LEXIS 166362, 2015 WL 8533769, at *5 (D. Colo. Dec. 11, 2015). “In other words, the relevant statute needs to prescribe or proscribe some relatively discrete action.” Id. The language of § 25-5-706(3)(d) proscribes willful or wanton misconduct and § 25-5-706(3)(e) proscribes something akin to negligent conduct. This is not statutory language prescribing or proscribing some discrete action (e.g., all chairs must be two feet removed from the ground at the unloading area). Therefore, the Court finds that Plaintiff has failed to state a claim for negligence per se. The Court grants the Motion as to Claim Two and dismisses Claim Two without prejudice.
B. Premises Liability Act Preemption
The Colorado Premises Liability Act contains the following provision:
In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.
Colo. Rev. Stat. § 13-21-115(2). Defendant does not dispute that it meets the statutory definition of a “landowner”. (ECF No. 17 at n.1.) Based on its status as a landowner and the language of [*7] § 13-21-115(2), Defendant asserts that it can only be found liable, if at all, under the Premises Liability Act. (Id. at 4.) Therefore, Defendant argues that Claims One and Two are preempted and must be dismissed. (Id. at 3-4.)
To support its argument, Defendant cites the Colorado Supreme Court in Vigil v. Franklin, 103 P.3d 322 (Colo. 2004). In that case, the court held that the language of § 13-21-115(2) was “specific in its terms and without ambiguity,” and demonstrated that the General Assembly intended “to completely occupy the field and supercede existing law in the area” of premises liability. Vigil, 103 P.3d at 328. Furthermore, “[t]his language, coupled with the precisely drawn landowner duties in subsection (3), leaves no room for application of common law tort duties.” Id. Ultimately, the Court held that the Premises Liability Act “abrogate[s] the common law with respect to landowner duties.” Id. at 330.
This Court has interpreted the Colorado Supreme Court’s opinion in Vigil and has held that “all common law claims involving landowner duties, including negligence . . . are abrogated by the Premises Liability Act which provides the exclusive remedy.” Raup v. Vail Summit Resorts, Inc., F. Supp. 3d , , 2016 U.S. Dist. LEXIS 11499, 2016 WL 374463, at *3 (D. Colo. Feb. 1, 2016); see also Giebink v. Fischer, 709 F. Supp. 1012, 1017 (D. Colo. 1989) (holding that when a common law negligence claim is founded on negligent maintenance of a ski area, such a claim is within the scope of the Premises Liability Act [*8] and must be dismissed).
Claim One is a common law negligence claim. (See ECF No. 6.) Plaintiff also alleges that her injury occurred while on the property of Defendant, the admitted landowner. (Id.) Therefore, the claim would be preempted by the Premises Liability Act if the alleged injury occurred “by reason of the condition of such property, or activities conducted or circumstances existing on such property.” Colo. Rev. Stat. § 13-21-115(2).
Plaintiff alleges in Claim One that her injury occurred due to Defendant’s failure “to maintain a proper distance between the chair and the ground at the unloading point, and/or [failure] to property operate and/or maintain the chair lift.” (ECF No. 6 ¶ 15.) The alleged failures to maintain the conditions of the property clearly fall under the Premises Liability Act. Furthermore, failing to properly operate the chair lift is an “activity conducted” on the property that also falls under the Premises Liability Act. See Colo. Rev. Stat. § 13-21-115(2); see also Raup, 2016 U.S. Dist. LEXIS 11499, 2016 WL 374463, at *4 (holding that the affirmative actions of a chair lift operator, in directing passengers to exit the lift, qualified as activity conducted on the property for the purposes of the Premises Liability Act).
The Court thus has little difficulty in concluding [*9] that Plaintiff’s common law negligence claim is preempted by the Premises Liability Act. Accordingly, the Court grants the Motion as to Claim One and dismisses Claim One with prejudice. Since the Court dismissed Plaintiff’s claim for negligence per se in the previous section, the Court need not discuss, let alone decide, whether that claim should also be dismissed based on Defendant’s preemption argument.2
2 Defendant does not argue that Claims Three, Four, and Five are preempted by the Premises Liability Act. Therefore, the Court will also not address that issue.
C. Imputed Liability Claims
Defendant admits that both Megan McKinney and chair lift operator John Doe were employees of Defendant. (ECF No. 17 at 7.) Defendant further admits that both were acting within the scope of their employment at the time of Plaintiff’s incident. (Id.) As such, Defendant admits that it is liable under the theory of respondeat superior for whatever negligent acts or omissions of those two employees, if any, caused Plaintiff’s injuries. (See id.)
Defendant argues that, because it is vicariously liable for the employees’ negligent acts, claims based on other theories of imputed liability–Claims Three and Five–are [*10] duplicative and should be dismissed.3 (Id. at 7-8.) Defendant cites two trial court decisions from Colorado state court in which those courts dismissed claims based on theories of imputed liability that they found to be duplicative. (See id.) However, Defendant provides no state appellate precedential support for its position. (See id.)
3 In the heading for its third argument in the Motion, Defendant asserts that Plaintiff’s fourth claim for negligence (respondeat superior) should also be dismissed. (ECF No. 17 at 6, 8.) However, Defendant, in its discussion, does not argue that Claim Four should be dismissed. (Id. at 6-8.) Defendant’s argument in that section is limited to arguing that Claims Three and Five should be dismissed because they are duplicative of Claim Four. (See id.)
Moreover, Defendant fails to acknowledge that “[p]laintiffs may seek duplicative relief under federal and state statutes and common [law].” Big Cats of Serenity Springs, Inc. v. Vilsack, 84 F. Supp. 3d 1179, 1198 (D. Colo. 2015). The pursuit of alternative claims for similar relief is expressly permitted by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”). Plaintiff may not recover [*11] for the same injury under multiple theories of imputed liability, and at some point Plaintiff may have to choose between her theories. However, that is not a reason to dismiss any of Plaintiff’s claims at this stage. Accordingly, the Court denies Defendant’s Motion as to Claims Three, Four, and Five.4
4 In its reply, Defendant argues that Plaintiff’s claim for negligent hiring should also be dismissed on the grounds that Plaintiff failed to plead “what knowledge [Defendant] had or should have had at the time its employees were hired.” (ECF No. 31 at 6.) This argument was not made in the Motion itself and therefore the Court need not and will not consider it.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. Defendant’s Partial Motion to Dismiss Amended Complaint (ECF No. 17) is GRANTED IN PART and DENIED IN PART;
2. Defendant’s Motion to Dismiss is GRANTED as to Claim One (Negligence) and Claim Two (Negligence Per Se) and DENIED as to all other claims;
3. Claim One of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED WITH PREJUDICE; and
4. Claim Two of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED WITHOUT PREJUDICE.
Dated this 11th day of March, 2016. [*12]
BY THE COURT:
/s/ William J. Martínez
William J. Martínez
United States District Judge
Colorado Passenger Tramway Act
Posted: March 30, 2016 Filed under: Colorado Leave a commentCOLORADO REVISED STATUTES
TITLE 25. HEALTH
PRODUCTS CONTROL AND SAFETY
ARTICLE 5.PRODUCTS CONTROL AND SAFETY
PART 7. PASSENGER TRAMWAY SAFETY
25-5-701. Legislative declaration
25-5-703. Passenger tramway safety board – composition – termination
25-5-703.5. Board subject to termination – repeal of article. (Repealed)
25-5-704. Powers and duties of board
25-5-705. Responsibilities of area operators
25-5-706. Disciplinary action – administrative sanctions – grounds
25-5-707. Orders – enforcement
25-5-708. Disciplinary proceedings
25-5-709. Passenger tramway licensing required
25-5-710. Application for new construction or major modification
25-5-711. Application for licensing
25-5-712. Licensing of passenger tramways
25-5-713. Licensing and certification fees
25-5-714. Disposition of fees and fines
25-5-715. Inspections and investigations – costs – reports
25-5-717. Provisions in lieu of others
25-5-718. Governmental immunity – limitations on liability
25-5-719. Independent contractors – no general immunity
25-5-720. Confidentiality of reports and other materials
C.R.S. 25-5-701 (2015)
25-5-701. Legislative declaration
In order to assist in safeguarding life, health, property, and the welfare of this state, it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways and to assure that reasonable design and construction are used for, that 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, passenger tramways.
HISTORY: Source: L. 65: p. 709, § 1. C.R.S. 1963: § 66-25-1.L. 76: Entire section amended, p. 660, § 1, effective May 27.L. 77: Entire section amended, p. 1288, § 2, effective July 1.L. 83: Entire section amended, p. 1071, § 1, effective May 25.L. 93: Entire section amended, p. 1533, § 3, effective July 1.
Cross references: For agricultural and animal products standards, see title 35; for automotive products standards, see parts 8 and 9 of article 20 of title 8.
ANNOTATION
Law reviews. For article, “Ski Injury Liability”, see 43 U. Colo. L. Rev. 307 (1972). For article, “Changes in Colorado Ski Law”, see 13 Colo. Law. 407 (1984). For article, “The Development of the Standard of Care in Colorado Ski Cases”, see 15 Colo. Law. 373 (1986).
Neither this act nor the Ski Safety Act of 1979 (article 44 of title 33, C.R.S.) preempts or supersedes the common law standard of care applicable to ski lift operators, to use the highest degree of care commensurate with the practical operation of the lift, regardless of the season. The general assembly did not intend for the regulations adopted by the board to preclude common law negligence actions against ski lift operators or the duty to exercise the highest degree of care. Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998).
25-5-702. Definitions
As used in this part 7, unless the context otherwise requires:
(1) “Area operator” means a person who owns, manages, or directs the operation and maintenance of a passenger tramway. “Area operator” may apply to the state or any political subdivision or instrumentality thereof.
(1.5) “Board” means the passenger tramway safety board created by section 25-5-703.
(1.7) “Commercial recreational area” means an entity using passenger tramways to provide recreational opportunities to the public for a fee.
(2) “Industry” means the activities of all those persons in this state who own, manage, or direct the operation of passenger tramways.
(3) “License” means the formal, legal, written permission of the board to operate a passenger tramway.
(4) “Passenger tramway” means a device used to transport passengers uphill on skis, or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans. “Passenger tramway” includes, but is not limited to, the following devices:
(a) Fixed-grip lifts. “Fixed-grip lift” means an aerial lift on which carriers remain attached to a haul rope. The tramway system may be either continuously or intermittently circulating, and may be either monocable or bicable.
(b) Detachable-grip lifts. “Detachable-grip lift” means an aerial lift on which carriers alternately attach to and detach from a moving haul rope. The tramway system may be monocable or bicable.
(c) Funiculars. “Funicular” means a device in which a passenger car running on steel or wooden tracks is attached to and propelled by a steel cable, and any similar devices.
(d) Chair lifts. “Chair lift” means a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain, or link belt supported by trestles or towers with one or more spans, and any similar devices.
(e) Surface lifts. “Surface lift” means a J-bar, T-bar, or platter pull and any similar types of devices or means of transportation which pull skiers riding on skis by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans.
(f) Rope tows. “Rope tow” means a type of transportation which pulls the skier riding on skis as the skier grasps the rope manually, and any similar devices.
(g) Portable aerial tramway devices. “Portable aerial tramway device” means any device designed for temporary use and operation, without permanent foundations, in changing or variable locations, with a capacity of less than five persons, which transports equipment or personnel, and is not used or intended to be used by the general public.
(h) Portable tramway devices. “Portable tramway device” means any device designed to be used and operated as a rope tow or surface lift without permanent foundations and intended for temporary use in changing or variable locations, when used within the boundary of a recognized ski area.
(i) Private residence tramways. “Private residence tramway” means a device installed at a private residence or installed in multiple dwellings as a means of access to a private residence in such multiple dwelling buildings, so long as the tramway is so installed that it is not accessible to the general public or to other occupants of the building.
(j) Reversible aerial tramways. “Reversible aerial tramway” means a device on which passengers are transported in cable-supported carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals.
(k) Conveyors. “Conveyor” means a type of transportation by which skiers, or passengers on recreational devices, are transported uphill on top of a flexible, moving element such as a belt or a series of rollers.
(4.5) “Program administrator” means the person who manages the board’s offices on a day-to-day basis and works with the supervisory tramway engineer and the board in implementing the policies, decisions, and orders of the board.
(5) “Qualified tramway design engineer” or “qualified tramway construction engineer” means an engineer licensed by the state board of licensure for architects, professional engineers, and professional land surveyors pursuant to part 1 of article 25 of title 12, C.R.S., to practice professional engineering in this state.
(6) “Staff” means the program administrator, the supervisory tramway engineer, and their clerical staff.
(7) “Supervisory tramway engineer” means the tramway engineer who works with the program administrator and the board in implementing the policies, decisions, and orders of the board.
HISTORY: Source: L. 65: p. 709, § 1. C.R.S. 1963: § 66-25-2.L. 76: (1) and (4)(c) amended and (1.5) and (5) added, p. 661, § 2, effective May 27.L. 83: (5) amended, p. 1072, § 2, effective May 25.L. 93: (1), (3), and (4) amended and (1.7), (4.5), (6), and (7) added, p. 1533, § 4, effective July 1.L. 2001: (4)(k) added, p. 118, § 3, effective July 1.L. 2004: (5) amended, p. 1311, § 57, effective May 28.L. 2006: (5) amended, p. 743, § 11, effective July 1.
25-5-703. Passenger tramway safety board – composition – termination
(1) There is hereby created a passenger tramway safety board of six appointive members and one member designated by the United States forest service. The appointive members shall be appointed by the governor from persons representing the following interests: Two members to represent the industry or area operators; two members to represent the public at large; one member who is a licensed professional engineer not employed by a ski area or related industry; and one member familiar with or experienced in the tramway industry who may represent the passenger tramway manufacturing or design industry or an area operator. No person shall be so appointed or designated except those who, by reason of knowledge or experience, shall be deemed to be qualified. Such knowledge or experience shall be either from active and relevant involvement in the design, manufacture, or operation of passenger tramways or as a result of extensive and relevant involvement in related activities. The governor, in making such appointments, shall consider recommendations made to him or her by the membership of the particular interest from which the appointments are to be made.
(2) Each of the appointed members shall be appointed for a term of four years and until a successor is appointed and qualified and no board member shall serve more than two consecutive four-year terms. A former board member may be reappointed to the board after having vacated the board for one four-year term. Vacancies on the board, for either an unexpired term or for a new term, shall be filled through prompt appointment by the governor. The member of the board designated by the United States forest service shall serve for such period as such federal agency shall determine and shall serve without compensation or reimbursement of expenses.
(3) The governor may remove any member of the board for misconduct, incompetence, or neglect of duty.
(4) Board members appointed by the governor shall have been residents of this state for at least three years.
(5) No member of the board who has any form of conflict of interest or the potential thereof shall participate in consideration of the deliberations on matters to which such conflict may relate; such conflicts may include, but are not limited to, a member of the board having acted in any consulting relationship or being directly or indirectly involved in the operation of the tramway in question.
(6) A majority of the board shall constitute a quorum. When necessary, the board may conduct business telephonically during a public meeting for purposes of obtaining a quorum, facilitating the participation of members in remote locations, or both.
(7) The provisions of section 24-34-104, C.R.S., concerning the termination schedule for regulatory bodies of the state unless extended as provided in that section, are applicable to the passenger tramway safety board created by this section.
HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-3.L. 76: Entire section amended, p. 661, § 3, effective May 27.L. 77: Entire section amended, p. 1289, § 3, effective July 1.L. 93: Entire section amended, p. 1535, § 5, effective July 1.L. 2001: (1) amended, p. 119, § 4, effective July 1.L. 2008: (1) amended, p. 369, § 4, effective July 1.
ANNOTATION
Law reviews. For article, “Ski Injury Liability”, see 43 U. Colo. L. Rev. 307 (1972).
25-5-703.5. Board subject to termination – repeal of article. (Repealed)
HISTORY: Source: L. 76: Entire section added, p. 627, § 39, effective July 1.L. 91: Entire section amended, p. 688, § 56, effective April 20.L. 93: Entire section repealed, p. 1536, § 6, effective July 1.
25-5-704. Powers and duties of board
(1) The board has the following powers and duties in addition to those otherwise described by this part 7:
(a) To promulgate, amend, and repeal such rules as may be necessary and proper to carry out the provisions of this article. In adopting such rules, the board may use as general guidelines the standards contained in the “American National Standard for Passenger Ropeways – Aerial Tramways and Aerial Lifts, Surface Lifts, Tows, and Conveyors – Safety Requirements”, as adopted by the American national standards institute, incorporated, as amended from time to time. Such rules shall not be discriminatory in their application to area operators and procedures of the board with respect thereto shall be as provided in section 24-4-103, C.R.S., with respect to rule-making.
(b) To investigate matters relating to the exercise and performance of the powers and duties of the board;
(c) To receive complaints concerning violations of this part 7;
(d) To conduct meetings, hold hearings, and take evidence in all matters relating to the exercise and performance of the powers and duties of the board, subpoena witnesses, administer oaths, and compel the testimony of witnesses and the production of books, papers, and records relevant to the subject inquiry. The program administrator may issue subpoenas on behalf of the board at the board’s direction. If any person refuses to obey any subpoena so issued, the board may petition the district court, setting forth the facts, and thereupon the court in a proper case shall issue its subpoena. The board may appoint an administrative law judge pursuant to part 10 of article 30 of title 24, C.R.S., to take evidence and to make findings and report them to the board. The board may elect to hear the matter itself with the assistance of an administrative law judge, who shall rule on the evidence and otherwise conduct the hearing in accordance with the “State Administrative Procedure Act”, article 4 of title 24, C.R.S.
(e) To discipline area operators in accordance with this part 7;
(f) To approve and renew licenses in accordance with this part 7;
(g) To elect officers;
(h) To establish standing or temporary technical and safety committees composed of persons with expertise in tramway-related fields to review, as the board deems necessary, the design, construction, maintenance, and operation of passenger tramways and to make recommendations to the board concerning their findings. Committees established pursuant to this paragraph (h) shall meet as deemed necessary by the board or the supervisory tramway engineer.
(i) To collect fees, established pursuant to section 24-34-105, C.R.S., for any application for a new construction or major modification, for any application for licensing, and for inspection and accident investigations;
(j) To cause the prosecution and enjoinder of all persons violating such provisions and to incur the necessary expenses thereof;
(k) To delegate duties to the program administrator;
(l) To keep records of its proceedings and of all applications.
HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-4.L. 77: Entire section amended, p. 1289, § 4, effective July 1.L. 79: Entire section amended, p. 912, § 15, effective July 1.L. 93: Entire section amended, p. 1536, § 7, effective July 1.L. 2001: (1)(a) and (1)(i) amended, p. 119, § 5, effective July 1.
25-5-705. Responsibilities of area operators
The primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators of passenger tramway devices.
HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-5.L. 76: Entire section amended, p. 661, § 4, effective May 27.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1538, § 8, effective July 1.
25-5-706. Disciplinary action – administrative sanctions – grounds
(1) Disciplinary action of the board pursuant to this section shall be taken in accordance with the “State Administrative Procedure Act”, article 4 of title 24, C.R.S.
(2) Disciplinary action of the board may be imposed as an alternative to or in conjunction with the issuance of orders or the pursuit of other remedies provided by section 25-5-707 or 25-5-716, and may consist of any of the following:
(a) Denial, suspension, revocation, or refusal to renew the license of any passenger tramway. The board may summarily suspend a license pursuant to the authority granted by this part 7 or article 4 of title 24, C.R.S.
(b) (I) When a complaint or investigation discloses an instance of misconduct that, in the opinion of the board, does not warrant formal action by the board but that should not be dismissed as being without merit, issuance and sending of a letter of admonition, by certified mail, to the area operator.
(II) When a letter of admonition is sent by the board, by certified mail, to an area operator such area operator shall be advised that he or she has the right to request in writing, within twenty days after receipt of the letter, that formal disciplinary proceedings be initiated to adjudicate the propriety of the conduct upon which the letter of admonition is based.
(III) If the request for adjudication is timely made, the letter of admonition shall be deemed vacated and the matter shall be processed by means of formal disciplinary proceedings.
(c) Assessment of a fine, not to exceed ten thousand dollars per act or omission or, in the case of acts or omissions found to be willful, fifty thousand dollars per act or omission, against any area operator;
(d) Imposition of reasonable conditions upon the continued licensing of a passenger tramway or upon the suspension of further disciplinary action against an area operator.
(3) The board may take disciplinary action for any of the following acts or omissions:
(a) Any violation of the provisions of this part 7 or of any rule or regulation of the board promulgated pursuant to section 25-5-704 when the act or omission upon which the violation is based was known to, or reasonably should have been known to, the area operator;
(b) Violation of any order of the board issued pursuant to provisions of this part 7;
(c) Failure to report any incident or accident to the board as required by any provision of this part 7 or any rule or regulation of the board promulgated pursuant to section 25-5-704 when the incident or accident was known to, or reasonably should have been known to, the area operator;
(d) Willful or wanton misconduct in the operation or maintenance of a passenger tramway;
(e) Operation of a passenger tramway while a condition exists in the design, construction, operation, or maintenance of the passenger tramway which endangers the public health, safety, or welfare, which condition was known, or reasonably should have been known, by the area operator;
(f) Operation of a passenger tramway by an operator whose license has been suspended;
(g) Failure to comply with an order issued under section 25-5-707 or 25-5-716.
HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-6.L. 86: Entire section amended, p. 974, § 1, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1538, § 8, effective July 1.L. 2004: (2)(b) amended, p. 1863, § 123, effective August 4.L. 2006: (3)(f) and (3)(g) added, p. 96, § 64, effective August 7.
25-5-707. Orders – enforcement
(1) If, after investigation, the board finds that a violation of any of its rules or regulations exists or that there is a condition in passenger tramway design, construction, operation, or maintenance endangering the safety of the public, it shall forthwith issue its written order setting forth its findings and the corrective action to be taken and fixing a reasonable time for compliance therewith. Such order shall be served upon the area operator involved in accordance with the Colorado rules of civil procedure or the “State Administrative Procedure Act”, article 4 of title 24, C.R.S., and shall become final unless the area operator applies to the board for a hearing in the manner provided in section 24-4-105, C.R.S.
(2) If any area operator fails to comply with a lawful order of the board issued under this section within the time fixed thereby, the board may take further action as permitted by sections 25-5-706 and 25-5-716 and may commence an action seeking injunctive relief in the district court of the judicial district in which the relevant passenger tramway is located.
(3) Any person who violates an order issued pursuant to this section shall be subject to a civil penalty of not more than five thousand dollars for each day during which such violation occurs.
(4) Any area operator who operates a passenger tramway which has not been licensed by the board or the license of which has been suspended, or who fails to comply with an order issued under this section or section 25-5-716, commits a class 3 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S. Fines collected pursuant to this section shall be deposited in the general fund of the state.
HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-7.L. 86: (3) and (4) amended, p. 974, § 2, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1539, § 8, effective July 1.L. 2002: (4) amended, p. 1537, § 268, effective October 1.
25-5-708. Disciplinary proceedings
(1) The board may investigate all matters which present grounds for disciplinary action as specified in this part 7.
(2) Disciplinary hearings shall be conducted by the board or by an administrative law judge in accordance with section 25-5-704 (1) (d).
(3) Any person aggrieved by a final action or order of the board may appeal such action to the Colorado court of appeals in accordance with section 24-4-106 (11), C.R.S.
HISTORY: Source: L. 65: p. 712, § 1. C.R.S. 1963: § 66-25-8.L. 67: p. 200, § 1.L. 76: (1) amended and (2) added, p. 662, § 6, effective May 27.L. 77: (1) amended, p. 1290, § 6, effective July 1.L. 79: Entire section R&RE, p. 1661, § 120, effective July 19.L. 83: (2) repealed, p. 1073, § 6, effective May 25.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.
25-5-709. Passenger tramway licensing required
(1) The state, through the board, shall license all passenger tramways, unless specifically exempted by law, establish reasonable standards of design and operational practices, and cause to be made such inspections as may be necessary in carrying out the provisions of this section.
(2) A passenger tramway shall not be operated in this state unless it has been licensed by the board. No new passenger tramway shall be initially licensed in this state unless its design and construction have been certified to this state as complying with the rules and regulations of the board promulgated pursuant to section 25-5-704. Such certification shall be made by a qualified tramway design engineer or a qualified tramway construction engineer, whichever the case requires.
(3) The board shall have no jurisdiction over the construction of a new private residence tramway or over any modifications to an existing private residence tramway when such tramway is not used, or intended to be used, by the general public.
(4) The board shall have no jurisdiction over a portable aerial tramway device.
(5) The board shall have no jurisdiction over a portable tramway device when such tramway device is not used, or intended to be used, by the general public.
HISTORY: Source: L. 65: p. 712, § 1. C.R.S. 1963: § 66-25-9.L. 73: p. 1373, § 29.L. 79: Entire section amended, p. 1661, § 121, effective July 19.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.L. 2001: (3) and (5) amended, p. 119, § 6, effective July 1.
25-5-710. Application for new construction or major modification
Any new construction of a passenger tramway or any major modification to an existing installation shall not be initiated unless an application for such construction or major modification has been made to the board and a permit therefor has been issued by the board.
HISTORY: Source: L. 65: p. 712, § 1. C.R.S. 1963: § 66-25-10.L. 67: p. 200, § 2;L. 76: (1)(f) amended and (1)(g) added, p. 662, § 7, effective May 27;L. 77: (1)(b) amended, p. 308, § 14, effective June 10; (1)(h), (1)(i), and (2) added, p. 1290, § § 8, 7, effective July 1.L. 79: (1)(i) amended, p. 1661, § 122, effective July 19;L. 83: (1)(f) amended and (1)(g) repealed, pp. 1072, 1073, § § 5, 6, effective May 25;L. 86: (1)(a) to (1)(c) amended, p. 975, § 3, effective April 3.L. 87: (1)(b) amended, p. 971, § 83, effective March 13.L. 88: (1)(h) amended, p. 317, § 11, effective April 14.L. 91: (1)(a) amended, p. 1917, § 40, effective June 1.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.
ANNOTATION
Law reviews. For note, “Exculpatory Clauses and Public Policy: A Judicial Dilemma”, see 53 U. Colo. L. Rev. 793 (1982).
25-5-711. Application for licensing
Each year, every area operator of a passenger tramway shall apply to the board, in such form as the board shall designate, for licensing of the passenger tramways which such area operator owns or manages or the operation of which such area operator directs. The application shall contain such information as the board may reasonably require in order for it to determine whether the passenger tramway sought to be licensed by such area operator complies with the intent of this part 7 as specified in section 25-5-701 and the rules and regulations promulgated by the board pursuant to section 25-5-704.
HISTORY: Source: L. 65: p. 713, § 1. C.R.S. 1963: § 66-25-11.L. 77: Entire section amended, p. 637, § 5, effective July 1; entire section amended, p. 1291, § 9, effective July 1.L. 86: Entire section amended, p. 975, § 4, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.
25-5-712. Licensing of passenger tramways
(1) The board shall issue to the applying area operator without delay licensing certificates for each passenger tramway owned, managed, or the operation of which is directed by such area operator when the board is satisfied:
(a) That the facts stated in the application are sufficient to enable the board to fulfill its duties under this part 7; and
(b) That each such passenger tramway sought to be licensed has been inspected by an inspector designated by the board according to procedures established by the board and that such inspection disclosed no unreasonable safety hazard and no violations of the provisions of this part 7 or the rules and regulations of the board promulgated pursuant to section 25-5-704.
(2) In order to satisfy itself that the conditions described in subsection (1) of this section have been fulfilled, the board may cause to be made such inspections described in section 25-5-715 as it may reasonably deem necessary.
(3) Repealed.
(4) Licenses shall expire on dates established by the board.
(5) Each area operator shall cause the licensing certificate, or a copy thereof, for each passenger tramway thus licensed to be displayed prominently at the place where passengers are loaded thereon.
HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-12.L. 77: Entire section amended, p. 1291, § 10, effective July 1.L. 86: Entire section amended, p. 976, § 5, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1541, § 8, effective July 1.L. 2001: (3) repealed, p. 120, § 7, effective July 1.
25-5-713. Licensing and certification fees
The application for new construction or major modification and the application for licensing shall be accompanied by a fee established pursuant to section 24-34-105, C.R.S.
HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-13.L. 77: Entire section amended, p. 1291, § 11, effective July 1.L. 86: Entire section amended, p. 976, § 6, effective April 6.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1541, § 8, effective July 1.L. 2001: Entire section amended, p. 120, § 8, effective July 1.
25-5-714. Disposition of fees and fines
(1) All fees collected by the board under the provisions of this part 7 shall be transmitted to the state treasurer, who shall credit the same pursuant to section 24-34-105, C.R.S., and the general assembly shall make annual appropriations pursuant to said section for expenditures of the board incurred in the performance of its duties under this part 7, which expenditures shall be made from such appropriations upon vouchers and warrants drawn pursuant to law.
(2) Fines collected pursuant to section 25-5-707 shall be deposited in the general fund of the state.
HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-14.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1541, § 8, effective July 1.L. 2006: Entire section amended, p. 96, § 65, effective August 7.
25-5-715. Inspections and investigations – costs – reports
(1) The board may cause to be made such inspection of the design, construction, operation, and maintenance of passenger tramways as the board may reasonably require.
(2) Such inspections shall include, at a minimum, two inspections per year or per two thousand hours of operation, whichever occurs first, of each passenger tramway, one of which inspections shall be during the high use season and shall be unannounced, and shall be carried out under contract by independent contractors selected by the board or by the supervisory tramway engineer. Additional inspections may be required by the board if the area operator does not, in the opinion of the board, make reasonable efforts to correct any deficiencies identified in any prior inspection or if the board otherwise deems such additional inspections necessary. The board shall provide in its rules and regulations that no facility shall be shut down for the purposes of a regular inspection during normal operating hours unless sufficient daylight is not available for the inspection.
(3) The board may employ independent contractors to make such inspections for reasonable fees plus expenses. The expenses incurred by the board in connection with the conduct of inspections provided for in this part 7 shall be paid in the first instance by the board, but each area operator of the passenger tramway which was the subject of such inspection shall, upon notification by the board of the amount due, reimburse the board for any charges made by such personnel for such services and for the actual expenses of each inspection.
(4) The board may cause an investigation to be made in response to an accident or incident involving a passenger tramway, as the board may reasonably require. The board may employ independent contractors to make such investigations for reasonable fees plus expenses. The expenses incurred by the board in connection with the conduct of investigations provided for in this part 7 shall be paid in the first instance by the board, and thereafter one or more area operators may be billed for work performed pursuant to subsection (3) of this section.
(5) If, as the result of an inspection, it is found that a violation of the board’s rules and regulations exists, or a condition in passenger tramway design, construction, operation, or maintenance exists, endangering the safety of the public, an immediate report shall be made to the board for appropriate investigation and order.
HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-15.L. 86: Entire section amended, p. 976, § 7, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1542, § 8, effective July 1.
25-5-716. Emergency shutdown
When facts are presented tending to show that an unreasonable hazard exists in the continued operation of a passenger tramway, after such verification of said facts as is practical under the circumstances and consistent with the public safety, the board, any member thereof, or the supervisory tramway engineer may, by an emergency order, require the area operator of said tramway forthwith to cease using the same for the transportation of passengers. Such emergency order shall be in writing and signed by a member of the board or the supervisory tramway engineer, and notice thereof may be served by the supervisory tramway engineer, any member of the board, or as provided by the Colorado rules of civil procedure or the “State Administrative Procedure Act”, article 4 of title 24, C.R.S. Such service shall be made upon the area operator or the area operator’s agent immediately in control of said tramway. Such emergency shutdown shall be effective for a period not to exceed seventy-two hours from the time of service. The board shall conduct an investigation into the facts of the case and shall take such action under this part 7 as may be appropriate.
HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-16.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.
25-5-717. Provisions in lieu of others
The provisions for regulation, registration, and licensing of passenger tramways and the area operators thereof under this part 7 shall be in lieu of all other regulations or registration or licensing requirements, and passenger tramways shall not be construed to be common carriers within the meaning of the laws of this state.
HISTORY: Source: L. 65: p. 715, § 1. C.R.S. 1963: § 66-25-17.L. 77: Entire section amended, p. 1292, § 13, effective July 1.L. 85: Entire section amended, p. 411, § 23, effective July 1.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.
ANNOTATION
Even though a ski lift operator is not a common carrier, the attendant circumstances of operating a ski lift demand that the ski lift operator be held to the highest degree of care commensurate with the practical operation of the lift. Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998).
25-5-718. Governmental immunity – limitations on liability
The board, any member of the board, any person on the staff of the board, any technical advisor appointed by the board, any member of an advisory committee appointed by the board, and any independent contractor hired to perform or acting as a state tramway inspector on behalf of the board with whom the board contracts for assistance shall be provided all protections of governmental immunity provided to public employees by article 10 of title 24, C.R.S., including but not limited to the payment of judgments and settlements, the provision of legal defense, and the payment of costs incurred in court actions. These protections shall be provided to the board, board members, staff, technical advisors, committee members, and independent contractors hired to perform or acting as a state tramway inspector on behalf of the board only with regard to actions brought because of acts or omissions committed by such persons in the course of official board duties.
HISTORY: Source: L. 65: p. 715, § 1. C.R.S. 1963: § 66-25-18.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.
ANNOTATION
Law reviews. For article, “Ski Injury Liability”, see 43 U. Colo. L. Rev. 307 (1972).
25-5-719. Independent contractors – no general immunity
The provisions of section 25-5-718 shall be construed as a specific exception to the general exclusion of independent contractors hired to perform or acting as a state tramway inspector on behalf of the board from the protections of governmental immunity provided in article 10 of title 24, C.R.S.
HISTORY: Source: L. 86: Entire section added, p. 977, § 8, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.
25-5-720. Confidentiality of reports and other materials
(1) Reports of investigations conducted by an area operator or by a private contractor on an area operator’s behalf and filed with the board or the board’s staff shall be presumed to be privileged information exempt from public inspection under section 24-72-204 (3) (a) (IV), C.R.S., except as may be ordered by a court of competent jurisdiction.
(2) Except as otherwise provided in subsection (1) of this section, all information in the possession of the board’s staff and all final reports to the board shall be open to public inspection in accordance with part 2 of article 72 of title 24, C.R.S.
HISTORY: Source: L. 93: Entire section added, p. 1544, § 9, effective July 1.
25-5-721. Repeal of part
(1) This part 7 is repealed, effective July 1, 2019.
(2) Prior to such repeal, the passenger tramway safety board shall be reviewed as provided for in section 24-34-104, C.R.S.
HISTORY: Source: L. 93: Entire section added, p. 1544, § 9, effective July 1.L. 2001: (1) amended, p. 120, § 9, effective July 1.L. 2008: (1) amended, p. 369, § 1, effective July 1.
D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499
Posted: March 29, 2016 Filed under: Legal Case, New Jersey, Ski Area, Skiing / Snow Boarding | Tags: Chair Lift, Common Carrier, Great American Recreation, Highest Degree of Care, Loading Area, New Jersey, NJ, ski area Leave a commentD’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499
Kathleen A. D’Amico and Allen N. D’Amico, her husband, Plaintiffs, v. Great American Recreation, Inc., a Corporation of the State of New Jersey, Defendant
DOCKET No. W-029746-88
Superior Court of New Jersey, Law Division, Sussex County
265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499
December 24, 1992, Decided
SUBSEQUENT HISTORY: [***1] Approved for Publication June 9, 1993.
CASE SUMMARY:
COUNSEL: Craig L. Klafter for plaintiffs (Hanlon, Lavigne, Herzfeld & Rubin, attorneys).
Samuel A. DeGonge for defendant (Samuel A. DeGonge, attorneys).
JUDGES: RUSSELL, J.S.C.
OPINION BY: RUSSELL
OPINION
[***2] [*497] [**1165] On February 27, 1987, plaintiff was injured while attempting to board a ski lift at defendant’s ski resort, Vernon Valley. Functionally, [*498] chairlifts consist of a series of metal and wooden chairs which are suspended from a wire cable. They are spaced evenly apart along the cable which rests on wheels attached to tall steel towers. At the bottom and top of the mountain, there is a large wheel which reverses the direction of the cable to enable the chairs to go up and down the mountain. The skier skis to a waiting area to board the lift. As the chair comes closer, the skier sits down onto the chair and is picked up off the snow and transported up the mountain. A safety bar across the front of the chair is lowered into place to prevent the skier from falling out of the chair.
Plaintiff was in the boarding area of the ski lift when the accident occurred. As she was waiting for the chair, an unidentified skier skied into the path of the chair. He struck the chair intended to transport plaintiff up the mountain. As a result, the chair began to swing and struck plaintiff causing serious injury. Plaintiff alleged, inter alia, that defendant ski area was negligent in its operation and supervision of the ski lift. Plaintiff moved in limine for an order declaring defendant to be a common carrier in the operation of the ski lift.
This issue has not been addressed by any reported decisions in New Jersey. Plaintiff seeks to have this court adopt the reasoning of the Third District Court of Appeals of California in Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897, (1992) that a ski area is a common carrier in the operation of its ski lifts and the highest standard of care applies
There are two New Jersey statutes which regulate ski areas, N.J.S.A. 5:13-1 et seq. (hereinafter “Ski Act”) and N.J.S.A. 34:4A-1 et seq. (hereinafter “Ski Lift Safety Act”). Neither act resolves the issue presently before this court. The Ski Act imposes duties on ski area operators and skiers involving the act of [***3] skiing. The Ski Lift Safety Act authorizes the adoption of standards for the construction, operation and inspection of ski lifts.
Plaintiff asserts that the New Jersey Ski Lift Safety Act of 1975 was modeled after a similar statute in New Hampshire originally [*499] enacted in 1957. Plaintiff derives this assertion from the similarity between the statements of purpose of the two acts. N.J.S.A. 34:4A-2 and N.H.R.S.A. 225-1:1. However, the definition of a ski area operator is significantly different in that a provision of the New Hampshire statute was added in 1965 to specifically provide that ski area operators shall not be deemed to be common carriers. Plaintiff argues that since the New Jersey Legislature was relying largely on the New Hampshire statute when it adopted the Ski Lift Safety Act, the absence of a comparable provision excluding common carrier liability evidences an intent to impose such liability.
There is nothing in the legislative history of the Ski Act or the Ski Lift Safety Act which indicates such an intent. However, the similarity between the New Hampshire and New Jersey statutes indicates that the Legislature was aware of the New Hampshire law [***4] and presumably they were also aware of the 1967 New York law which also specifically excludes ski lift operators from common carrier liability. N.Y.Trans.Law Sec. 2(6).
[HN1] It is a long-standing tenet of statutory construction that the legislature will not be said to change the common law without clear statutory language. See State v. Dalglish, 86 N.J. 503, 432 A.2d 74 (1981). Furthermore, [HN2] N.J.S.A. 34:4A-4 specifically provides that the Ski Lift Safety Act shall not “reduce or diminish the standard of care imposed upon passenger tramway operators under existing law.”
New Jersey case law provides little assistance in this matter; however, a number of other courts have grappled with this issue. In 1959, the Appellate Division of the New York Supreme Court decided Grauer v. New York, 9 A.D.2d 829, 192 N.Y.S.2d 647 (1959). The court held that the state of New York would be deemed to be a common carrier in the operation of a chair lift at a state park. The court noted that in [**1166] the operation of the chair lift, “(a) fee was charged for transportation and the public was invited [***5] to use the service.” Id. 192 N.Y.S.2d at 649. This holding by the New York Court was later overturned by the Legislature in 1967 [*500] when it amended New York’s transportation law. See N.Y.Trans. Law Sec. 2(6).
In Fisher v. Mt. Mansfield Co., 283 F.2d 533 (2nd Cir.1960), the court upheld the trial judge’s ruling that the standard of care of a common carrier applied to a Vermont ski lift operator. In Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658 (1968), the trial judge instructed the jury that the ski area operator owed plaintiff the highest degree of care because it was a common carrier in the operation of its ski lifts. The Colorado Supreme Court upheld this decision.
In Allen v. New Hampshire, 110 N.H. 42, 260 A.2d 454 (1969), the court applied the standard of care of a common carrier to a ski lift operator. New Hampshire later changed its law through legislative action. N.H.R.S.A. Sec. 225-A:1. See Bolduc v. Herbert Schneider Corp., 117 N.H. 566, 374 A.2d 1187 (1977).
[***6] In one case, Pessl v. Bridger Bowl, 164 Mont. 389, 524 P.2d 1101 (1974), the court did not apply the common carrier standard to a ski lift operator because of specific state legislation preventing such application. See Mont.Code Ann. Sec. 69-6615 (1947).
Grauer, Fisher, Bagnoli, Allen and Pessl were all decided before the New Jersey Legislature adopted the Ski Lift Safety Act in 1975. As such, the Legislature must be said to have been aware of the trend of courts addressing this issue to hold ski lift operators to the standard of care of common carriers. See Guzman v. City of Perth Amboy, 214 N.J.Super. 167, 518 A.2d 758 (App.Div.1980).
This trend was continued in the recent, well reasoned decision of Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897 (1992). The court defined [HN3] a common carrier as “any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit” and held that a ski lift operator fit within [***7] this definition. Id. at 1508, 3 Cal.Rptr.2d 897.
[*501] The defendant in the Squaw Valley case and the defendant in the case sub judice both argued that a ski lift operator is not a common carrier because ski lift riders are required to possess special equipment and skills in order to use the lift, hence, a ski lift is not offered for use indiscriminately to the general public. This court agrees with the conclusion of the Squaw Valley Court that defendant’s argument must fail. [HN4] A common carrier does not lose its status as such merely because the nature of its services is specialized. All members of the general public who possess the necessary equipment and expertise may avail themselves of the Vernon Valley chair lift.
The rationale behind requiring common carriers to exercise the highest degree of care furthers its application here. A passenger of a common carrier places himself in the care of that common carrier. A passenger is unable to use his own faculties in order to prevent or avoid accidents and is forced to rely on the common carrier to ensure that accidents are avoided. The carrier has this responsibility [***8] because they exercise control of the equipment used in the transportation of the passenger. Only the carrier can ensure that the equipment is in proper working order and is being operated correctly.
Just like a passenger on a train who has no opportunity to ensure that the locomotive is operating properly, a skier cannot determine whether a ski lift is operating properly. When skiers board a ski lift, they are entrusting their care in the hands of another. Once they have committed themselves to riding that chair up the mountain, they are powerless to control their own safety. The chair lifts the skier off the ground as she sits down. The chair is suspended off the ground at considerable distance. The skier has no ability to stop the cable from moving. Furthermore, a skier can’t exit the chair once it has begun [**1167] its ascent. Because of the skier’s helplessness, ski lift operators should be held to the highest standard of care.
Defendant argues that it should not be deemed to be a common carrier because “(i)t does not hold itself out to the public for [*502] compensation for the transportation of persons.” Great American Recreation asserts that the transportation of skiers [***9] up the mountain is only “incidental” to its business. Ski areas provide customers with many services including snow making, trail grooming and maintenance, lessons, parking, equipment rentals and restaurant facilities. However, skiers come to ski areas to ski. If ski areas did not provide transportation up a mountain, it would be impossible for skiers to ski down the mountain. Transportation of skiers up the mountain is one of the primary functions of a ski area operator. It is the reason skiers purchase “lift tickets”.
Defendant also argues that holding ski lift area operators to the standard of care of a common carrier would necessitate holding operators of elevators, escalators and other people movers to the standard of care of common carriers. However, many states have imposed this standard of care on operators of these devices. See, e.g., Kaminsky v. Arthur Rubloff & Co., 72 Ill.App.2d 68, 218 N.E.2d 860 (1906) (elevator); Norman v. Thomas Emery’s Sons, Inc., 7 Ohio App.2d 41, 218 N.E.2d 480 (1942) (elevator); [***10] Vandagriff v. J.C. Penney Co., 228 Cal.App.2d 579, 39 Cal.Rptr. 671 (1964). But see Tolman v. Wieboldt Stores, Inc., 38 Ill.2d 519, 233 N.E.2d 33 (1968) (holding that escalators are not common carriers). The reported New Jersey decisions involving elevators or escalators do not address the issue of whether to hold the operators to the standard of care of a common carrier. See Pisano v. S. Klein on the Square, 78 N.J.Super. 375, 188 A.2d 622 (1963); Dombrowska v. Kresge-Newark, Inc., 75 N.J.Super. 271, 183 A.2d 111 (App.Div.1962).
The fact that this plaintiff was not physically on the lift when she was injured does not help defendant. [HN5] The duty of care of a common carrier includes providing a safe means of ingress and egress for its passengers. See Buchner v. Erie Railroad Co., 17 N.J. 283, 111 A.2d 257 (1955).
Based upon the applicable well-reasoned decisions from other jurisdictions and the analysis set forth above, [HN6] this court holds that ski area operators are common carriers in the operation of ski [*503] lifts. It is, of course, within the [***11] power of the Legislature to follow the examples of New York and New Hampshire and amend existing law to exclude ski lift operators from common carrier liability. Great American Recreation will be held to the standard of care applicable to other types of common carriers in the operation of its Vernon Valley chairlift. This standard has been described as the highest possible care consistent with the nature of the undertaking involved. Harpell v. Public Serv. Coord. Transp., 20 N.J. 309, 120 A.2d 43 (1956). See Model Jury Charges 5.31.
2015-2016 In bound ski/board fatalities
Posted: March 23, 2016 Filed under: Avalanche, Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: Aspen, Bear Valley, Blue Mountain, Blue Mountain Ski Area, Burke Mountain, Burke Mountain Ski Area, Cascade Mountain, Cascade Mountain Ski Hill, Chair Lift, fatality, Heavenly Mountain, Jackson Hole, Mount Snow, Mt. Waterman, Park City, Park City Mtn Resort, ski area, skiing, Snoqualmie Pass, Snowbasin, snowboarding, Solider Mountain, Squaw Valley resort, Steamboat Springs Ski Resort, Tubing, Vail, Whiteface, Winter Park Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of March 21, 2016. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Red type is natural or medical conditions that occurred inbounds on the slopes
Green Type is Fatalities while sledding at the Resort
Blue Type is a Lift Accidents
Purple Tye is Employee or Ski Patroller
2015 – 2016 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
11/29/15 |
CA |
Bear Mountain |
|
|
she collided with a metal stairway |
|
Ski |
21 |
F |
Jackson Township CA |
|
||
|
2 |
12/7/15 |
WY |
Jackson Hole |
Moran Run |
Blue |
Hit tree |
|
Board |
23 |
F |
Boston, MA |
Y |
||
|
3 |
12/15/15 |
CO |
Steamboat |
|
|
fell, landing face down in the snow |
|
Ski |
70 |
M |
Louisville CO |
|
||
|
4 |
12/19/15 |
WA |
Snoqualmie Pass |
Silver Fir |
|
tree-well |
|
Ski |
50 |
M |
North Bend, WA |
|
||
|
5 |
12/22/15 |
WY |
Jackson Hole |
Sundance run |
|
found inverted in a tree well |
|
Ski |
25 |
F |
Jackson Hole, WY |
Y |
||
|
6 |
12/23/15 |
NY |
Whiteface Lake Placid |
Summit Express |
Blue |
fell and struck his head |
blunt impact to the head |
Board |
26 |
M |
Litiz, PA |
N |
|
|
|
7 |
12/23/15 |
CA |
Bear Valley |
|
|
|
|
Ski |
71 |
M |
|
|
||
|
8 |
1/6/16 |
CO |
Vail |
|
|
|
tree well |
Board |
25 |
M |
Avon, CO |
|
||
|
9 |
1/12/16 |
UT |
Park City |
|
Intermediate |
|
|
|
60 |
M |
|
|
|
|
|
10 |
1/20 |
CO |
Keystone |
Elk Run |
|
Hit a tree |
|
|
27 |
M |
Boulder, CO |
|
||
|
11 |
1/24/16 |
VT |
Mount Snow |
Ripcord |
Double Diamond |
Hit Tree |
Blunt Force Trauma |
Board |
57 |
M |
Simsbury CT |
Yes |
||
|
12 |
1/28/16 |
CO |
Winter Park |
|
|
|
|
Skier |
24 |
M |
Kalamazoo, MI |
|
|
|
|
13 |
1/30/16 |
ID |
Solider Mountain |
|
|
Hit building |
|
Ski |
14 |
F |
Twin Falls, ID |
Yes |
||
|
14 |
2/3/16 |
PA |
Blue Mountain Ski Area |
|
|
|
blunt-force trauma |
|
35 |
M |
Tacoma, WA |
|
||
|
15 |
2/6 |
CA |
Mt. Waterman |
|
|
struck a tree |
|
|
60 |
M |
Winnetka, CA |
|
||
|
16 |
2/6 |
WI |
Cascade Mountain Ski Hill |
|
|
struck a tree |
|
|
24 |
F |
Oconto Falls, WI |
No |
||
|
17 |
2/6 |
UT |
Park City Mtn Resort |
Tombstone |
|
collapsed |
|
|
67 |
M |
UT |
|
|
|
|
18 |
2/15/16 |
VT |
Burke Mountain Ski Area |
Big Dipper Trail |
|
collided with a tree |
|
|
58 |
M |
Watertown |
No |
||
|
19 |
2/16 |
NV |
Heavenly Mountain Resort |
Crossover and Comet ski runs |
|
striking a tree |
|
|
77 |
F |
Madison, WI |
|
||
|
20 |
2/22/16 |
UT |
Snowbasin Ski |
Janis’ trail |
|
crashing into a tree, |
|
|
56 |
M |
NJ |
N |
|
|
|
21 |
2/22/16 (2/15) |
CO |
Aspen |
|
Taking Lesson |
Fell down |
Head injury |
|
68 |
M |
CO, |
|
||
|
22 |
2/22/16 |
NY |
Gore Mountain Ski Center |
|
Double Black Diamond |
struck several trees |
|
|
65 |
M |
Minerva, NY |
Y |
||
|
23 |
2/25 |
CO |
Beaver Creek |
|
Intermediate |
Hit a sign attached to a wooden post between runs |
blunt force trauma to the chest |
|
39 |
M |
Knoxville, TN |
Y |
||
|
24 |
2/26 |
MI |
Crystal Mountain |
Cheers Race Course |
Intermediate |
Lost control & slid backward |
|
|
58 |
M |
Traverse City, MI |
Y |
||
|
25 |
2/27 |
PA |
Seven Springs |
Wagner Trail |
|
Skier v. Skier Collision |
|
|
51 |
M |
Delmont |
|
||
|
26 |
2/27 |
|
Squaw Valley resort |
Headwall |
|
fell and slid down the slope through a stand of trees, suffering multiple injuries |
|
|
62 |
F |
Olympic Valley |
Y |
||
|
27 |
3/1 |
CO |
Breckenridge Ski Resort |
Sundown |
intermediate |
he collided with another skier, lost control and ran into a tree |
blunt force trauma injuries |
|
26 |
M |
Breckenridge, CO |
N |
||
|
28 |
|
|
Beaver Mountain Ski Resort |
|
|
struck a tree |
|
|
18 |
M |
Camano Island, WA |
|
||
|
|
3/6 |
WI |
Cascade Mountain Ski Hill |
|
|
running into a tree |
|
|
|
F |
Oconto Falls, WI |
N |
|
|
|
30 |
3/6 |
NV |
Mt. Rose Ski Tahoe |
Galena run |
|
reportedly fallen or collapsed |
|
|
43 |
M |
Reno, NV |
|
||
|
31 |
3/9 |
CO |
Telluride Ski Resort |
Gold Hill |
|
lost his skis and tumbled down a steep, wooded terrain |
|
|
49 |
M |
Colorado Springs, CO |
|
|
|
|
32 |
3/9 |
CO |
Copper Mountain |
American Flyer |
Intermediate |
hit a tree |
blunt force trauma injuries |
|
19 |
M |
Arlington, VA |
Y |
||
|
33 |
|
MT |
|
|
|
in some trees near a ski lift |
|
|
82 |
M |
CA |
|
|
|
|
34 |
3/19 |
CO |
Telluride |
Coonskin |
Black Diamond |
skis detached from his boots |
crashed into trees |
|
69 |
M |
Greenwood, S.C. |
|
||
|
35 |
3/20 |
UT |
Snowbird |
Chip’s Run |
|
|
hitting a rock |
|
55 |
m |
|
|
Download a PDF of this chart here.
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.
What do you think? Leave a comment.
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Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.
If you cannot read the entire chart you can download it here.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2016 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
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Michigan decision rules skier who fell into half pipe after landing a jump could not recover based on 2 different sections of the Michigan Ski Area Safety Act.
Posted: March 21, 2016 Filed under: Michigan, Ski Area | Tags: Christine Marshall, Half Pipe, Inc., Jump, Marvin Marshall, Michigan Ski Safety Act, Skier Safety Act, Terrain park, v Boyne USA Leave a commentLanguage of the Michigan Ski Area Safety Act used to stop plaintiff’s claims two different ways.
Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928
State: Michigan, Court of Appeals of Michigan
Plaintiff: Marvin Marshall and Christine Marshall
Defendant: v Boyne USA, Inc.,
Plaintiff Claims: Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe.
Defendant Defenses: plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.
Holding: for the defendant
Year: 2012
Plaintiff was skiing with a friend. In the morning, they had skied through the terrain park but had not skied the half pipe. In the afternoon, they went back to the terrain park and skied several jumps again. Plaintiff also noticed the warning sign at the entrance of the terrain park.
The half pipe in this case appears to be a trough lower than the height of the ski slope based upon the description in the decision. As the plaintiff landed a jump, he allegedly slid to a stop and then fell into the half pipe suffering injuries.
The plaintiff and his spouse sued the resort. The resort filed a motion for summary disposition (similar to a motion for summary judgment) with the court based on:
…plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.
That motion was denied, and the defendants appealed the denial to the Michigan Appellate Court.
Analysis: making sense of the law based upon these facts.
The court firs looked at the Michigan Ski Area Safety Act. The court found the claims of the plaintiff were barred by the act. Under the Michigan act, a skier assumes the risks of the sport that are necessary or not obvious.
We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Among the risks assumed are “variations in terrain.” MCL 408.342(2).
Because the actions of the plaintiff were covered under the act, the court then looked to see if the actions of the defendant ski area were in violation of any duty imposed under the act. The court did not find any violations of the act.
Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that defendant complied with this requirement.
The plaintiff argued that failing to mark the half pipe breached a duty to the plaintiff. However, the court found the plaintiff accepted that risk of an unmarked half pipe when he chose to ski into the terrain park and passed the warning sign.
By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law.
The defendant raised two additional arguments in its defense. The first was a release signed by the plaintiff when he rented his ski equipment and the “release” on the back of his lift ticket. Because the statute barred his claims and the lawsuit would be dismissed, the court did not look into either of those defenses.
The court reversed the trial court decision.
There was also a dissent in the case. The dissent agreed with the majority that the case should be reversed by based its decision to reverse on other grounds.
The dissent found the terrain park and the half pipe were necessary installations in a terrain park. However, the dissent agreed with the plaintiff’s that the half pipe was not obvious, which is what the dissent believes persuaded the trial court to deny the defendant’s motion.
However, because the plaintiff to actual knowledge of the half pipe that he observed earlier in the day while skiing he could not claim it was a hidden danger.
The dissent also felt the plaintiff should lose because the plaintiff failed to maintain reasonable control of his course and speed at all times as required by the Michigan Ski Area Safety Act.
I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.
The case was sent back to the trial court to be dismissed.
So Now What?
It’s nice when a plan comes together, and a statute is written so the court’s interpretation of the statute proceeds along the same lines as the writers of the statute intended.
The Michigan Ski Area Safety Act is a very effective act, almost as encompassing as Colorado’s. The act was written to make sure that injured skiers could only sue if the ski area actually did something to injure the plaintiffs.
The facts in this case also do not lead you to believe the plaintiff stretched the truth. His actions in skiing across the mountain to hit a jump which sent him further across the mountain diagonally were not super intelligent. However, did not result in any injury except his own.
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Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928
Posted: March 15, 2016 Filed under: Legal Case, Michigan, Ski Area | Tags: Christine Marshall, Half Pipe, Inc., Jump, Marvin Marshall, Michigan Ski Safety Act, Skier Safety Act, Terrain park, v Boyne USA Leave a commentMarshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928
Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.
No. 301725
COURT OF APPEALS OF MICHIGAN
2012 Mich. App. LEXIS 928
May 15, 2012, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
SUBSEQUENT HISTORY: Leave to appeal denied by Marshall v. Boyne United States, Inc., 2012 Mich. LEXIS 2153 (Mich., Dec. 5, 2012)
PRIOR HISTORY: [*1]
Charlevoix Circuit Court. LC No. 10-091822-NF.
CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge
JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).
OPINION
Per Curiam.
Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.
In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.
The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.
After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”
Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell.
Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).
We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law. Anderson, 469 Mich at 25-26.
Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.
Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.
/s/ David H. Sawyer
/s/ Henry William Saad
CONCUR BY: HOEKSTRA
CONCUR
Hoekstra, P.J., (concurring).
Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.
In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.
Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.
But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.
/s/ Joel P. Hoekstra
Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.
Posted: March 14, 2016 Filed under: Minors, Youth, Children, New Jersey, Ski Area | Tags: Duty of care, Hazard, New Jersey, New Jersey Skier Safety Act, ski area, Toboggan, Trespasser, Ultra Hazard, Warning Leave a commentHowever, the courts in this case seemed to want the plaintiffs to win no matter what.
State: New Jersey, Superior Court of New Jersey, Appellate Division
Plaintiff: Patrick Brett and Elisa Ramundo
Defendant: Great American Recreation, Inc. et al.
Plaintiff Claims: Negligence
Defendant Defenses: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute.
Holding: For the plaintiff’s
Year: 1995
This is an old decision; however, it explains how a statute created to and passed to protect an activity, can be used to hold the operators of the activity liable.
There are numerous claims, cross claims, third party claims and claimants. Several parties were dismissed prior to trial. Basically, everyone who was brought into the lawsuit also made claims against the people bringing them in and anyone else that could have any liability.
Thirteen college friends intended to spend the weekend in a condo owned by the uncle of one of the thirteen. The condo was sitting next to the Great Gorge North ski area. Between the ski area and the condos was a vacant strip of land. The land is owned by two condo associations, including one of the plaintiffs were staying in.
During the day, the vacant strip of land is used by the ski area as a bunny hill. When the ski hill is closed the lights are turned off. However, the lights are turned back on later in the night for the groomers to operate.
One of the party of 13 found in the condo a toboggan. After the lights were turned back on, several of the thirteen went tobogganing on the bunny hill. They were not alone tobogganing; other people were tobogganing, sledding and using the hill after it had closed but with the lights on.
Different people in the group used the toboggan at different times; taking turns because the toboggan could only hold six at a time. On the third run, the toboggan was launched higher up the hill.
The toboggan went down the bunny hill across a fifty to sixty foot flat section of land, over a flattened snow fence then over the edge of a 20’ embankment landing in the parking lot below. One of the six was able to fall off the toboggan before it went over the embankment. The five remaining riders were seriously injured landing in the parking lot and hitting a light pole.
Security guards were employed by the defendant condo association. Part of their duties included keeping people off the bunny hill. However, this night the security guards were shorthanded, and hill was not checked. The plaintiff’s even argued that the defendants were negligent because they failed to eject people on the bunny hill.
Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers.
The case proceeded to trial, and the plaintiffs were awarded $2,475,000 among the five of them. The damages were apportioned under comparative negligence as: plaintiffs 22%, defendant 54% and Stonehill 24% (one of the condo associations).
The defendants appealed.
Analysis: making sense of the law based on these facts.
The court first pointed out that even if the plaintiffs were found to be trespassers that did not mean, under New Jersey law that no duty was owed to the trespassers. If the land contained a dangerous instrumentality, then a duty is owed to a trespasser to warn them of the danger.
Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous.
In this case, the court concluded that next to a bunny hill, an embankment is a dangerous instrumentality. The court’s opinion of the situation is pretty clear in the next discussion when the embankment is called a fatal trap.
Here, on one side of that relationship are young people attracted to a condominium because of its proximity to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, was a near-fatal trap to those using the trail to toboggan.
New Jersey has a Skier Safety Act. The court found that the New Jersey Skier Safety Act applied to this case.
To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies.
Once it is determined the act applies, the court, or jury, determines if the injuries of the plaintiff were caused by the ski operators violation of the act. If so the plaintiff recovers.
If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence.
The court also found the plaintiff’s violated one statute of the New Jersey Skier Safety Act. The plaintiff’s failed to maintain control of their toboggan and did not know their abilities.
Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:
A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.
The court also found the plaintiff’s assumed the risk because they still went down the slope. However, this assumption of the risk, the court found was not a complete bar, but only proved the plaintiffs contributed to their injuries. Which is contrary to how the assumption of risk provision reads and is somewhat contrary to earlier statements in the case?
It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.
This interpretation of the statute effectively render’s the inherent risk section of the statute void. An inherent risk is a risk that is part of the activity. In inherent risk is something that cannot be removed from the activity without rendering the activity moot. You cannot sue for an injury you receive from an inherent risk of the activity, allegedly. Skier Safety Acts are written to broaden the risks that are inherent and to make them, if assumed an absolute bar to a claim, in most states.
However, in New Jersey, this is not the case.
It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.
The case took a somewhat amusing turn. The court reviewed the plaintiff’s claim that a stronger fence should have been built and that the defendants were liable because they had not built a fence strong enough to keep the plaintiff’s from going over the embankment. Aren’t the injuries going to be different when a toboggan going fast enough to over an embankment hits a fence, but still severe?
The argument then went back to the New Jersey Skier Safety Act. The act differentiates between manmade hazards and natural ones. The statute defines a ski area as real property “…”utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.”
However, the court simply stated, “Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.”
Then the court looked at the hazard and determined the act required removal of a hazard. If the hazard could not be removed, then the plaintiff’s had to be warned of the hazard.
Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed all posted warnings.”
The decision then went back to the duty owed to trespassers. The defendants argued the New Jersey Skier Safety Act does not apply to trespassers. However, the court stated that even if the plaintiffs were trespassers a high duty was owed with or without the New Jersey Skier Safety Act.
We already suggested that even at common law, defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable.
The court then summed out the analysis it was making to allow a recovery by the plaintiffs.
Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.
The statutory responsibility was the failure to remove the embankment or post a warning about it.
A major issue at trial was whether defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:
a. It shall be the responsibility of the operator to the extent practicable, to:
* * * *
(3) Remove as soon as practicable obvious, man-made hazards.
The appellate court upheld the jury’s decision and award at trial.
So Now What?
In New Jersey, you must make your property safe for all users of the property, even if they are doing so without our permission. If you cannot remove the hazard, you must post a warning of the hazard, if the hazard is considered ultra-hazardous.
Simply put, risk management is not controlling what people are expected to do at your program or business. Risk Management is looking at all aspects of the operation and finding ways that people can be hurt doing things other than what they came for.
The Zip Line may be perfect but is someone can mistake an anchor for a zip line you will be sued. See Federal court voids release in Vermont based on Vermont’s unique view of release law. Someone uses the equipment incorrectly, and the court is going to hold you to the fire. See Sometimes you get screwed; here Petzl was shafted by the court.
However, a person can use a piece of equipment, try a ride, climb up or down; they will do it wrong, be hurt and sue.
Risk Management is looking at things from every point of view, for every age group, for every activity, if you don’t think those people, those age groups or that activity can be done.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53
Posted: March 13, 2016 Filed under: Legal Case, New Jersey, Ski Area | Tags: Duty of care, Hazard, New Jersey, New Jersey Skier Safety Act, ski area, Toboggan, Trespasser, Ultra Hazard, Warning Leave a commentTo Read an Analysis of this decision see Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.
Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53
Patrick Brett and Elisa Ramundo, Plaintiffs-Respondents, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association, Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Defendant/Third-Party-Plaintiff/Respondent, v. Denise Mcdade, Nancy Morgan, Third-Party-Defendants. Karen Furman, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, v. Rudolph Maurizzi, Third-Party-Defendant/Respondent. Donald Pisarcik, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants, and Rudolph Maurizzi, Defendant-Respondent. Megan Russell, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Lisa Carmelitano, Third-Party-Defendants/Respondents, and Karen Furman, Third-Party-Defendant.
A-4010-92T3
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53
November 29, 1994, Argued
February 8, 1995, Decided
SUBSEQUENT HISTORY: [***1] Approved for Publication February 8, 1995. As Amended.
Certification granted Brett v. Great Am. Recreation, 141 N.J. 97, 660 A.2d 1196, 1995 N.J. LEXIS 379 (1995)
Affirmed by Brett v. Great Am. Rec., 144 N.J. 479, 677 A.2d 705, 1996 N.J. LEXIS 787 (1996)
PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Union County.
COUNSEL: Samuel A. DeGonge argued the cause for appellant Great American Recreation, Inc. (Samuel J. McNulty, on the brief).
Philip G. Auerbach argued the cause for respondents Patrick Brett, Elisa Ramundo, Karen Furman and Donald Pisarcik (Auerbach & Cox, attorneys; Mr. Auerbach, on the brief).
John P. Doran argued the cause for respondent Megan Russell.
Anthony P. Pasquarelli argued the cause for respondent Rudolph Maurizzi (Methfessel & Werbel, attorneys; Jared E. Stolz, of counsel and on the brief).
Kevin J. Decoursey argued the cause for respondent Lisa Carmelitano (O’Toole & Couch, attorneys; Michael Della Rovere, on the brief).
JUDGES: Before Judges BRODY, LONG and ARNOLD M. STEIN. The opinion of the Court was delivered by BRODY, P.J.A.D.
OPINION BY: Warren Brody
OPINION
[*310] [**776] The opinion of the Court was delivered by
BRODY, P.J.A.D.
Plaintiffs in this consolidated personal injury action are five of thirteen college friends, then twenty and twenty-one years old, who had planned to be together for a winter weekend at a condominium in Vernon Township. The owner of the condominium, third-party defendant Rudolph Maurizzi, is the uncle of third-party defendant [***2] Lisa Carmelitano, one of the group. He allowed the group to use his condominium, which is one of many such buildings built along the slope of Great Gorge North on either side of a vacant strip of land. During the winter, the vacant strip, which is about a thousand feet long, is the Bunny Buster ski trail. Defendants Stonehill Property Owners Association, Inc. and Hotel [*311] Section Condominium Council, Inc. (Stonehill) own the land that contains the condominiums and the Bunny Buster trail. Defendant Great American Recreation, Inc. (defendant) operates the trail as a business under the terms of an easement from Stonehill.
Members of the group arrived on Friday at different times. Early arrivals spent part of the day skiing along various trails in the area. When they finished skiing, some of those returning to the condominium used or crossed the Bunny Buster trail even though defendant had turned off the lights on the trail because by then it had closed for the day. Between ten and eleven o’clock that night, after everyone in the group had arrived at the condominium, defendant turned on the Bunny Buster trail lights to enable its employees to groom the trail for the next day. Grooming [***3] is accomplished by using motor vehicles to pull heavy rollers over the trail to tamp down the snow.
Earlier that day, one member of the group discovered a toboggan that Maurizzi had stored in his condominium with other snow equipment. After the lights were turned on, the group decided to slide down part of the trail on the toboggan. There was evidence that other people at the time were using the trail for sledding and tobogganing. The toboggan could hold no more than six people so members of the group took turns riding it. The first two runs were uneventful.
[**777] The third run, with six on board, was a disaster. Starting from a point a bit higher than where the first two runs had begun, the toboggan slid down the trail, across a fifty- to sixty-foot flat expanse of snow at the base of the trail, over a flattened snow fence, and then over the edge of a twenty-foot dirt embankment to a parking lot below. One of the six fell off the toboggan before it dropped over the edge, thereby escaping injury. The other five, the plaintiffs, were seriously injured as their bodies hit the embankment, the parking lot and a parking-lot light pole. There was evidence that, at the time of the rescue operation, [***4] other people, not associated with plaintiffs’ group, who were tobogganing [*312] escaped injury by tumbling off their toboggan just before it dropped over the edge.
Claims against all third-party defendants were dismissed on their motions for partial summary judgment. Plaintiffs settled with Stonehill before trial. The jury found that under the New Jersey Ski Statute (Statute), N.J.S.A. 5:13-1 et seq., plaintiffs as a group, defendant and Stonehill were all negligent. The jury apportioned the negligence as follows: plaintiffs 22%, defendant 54% and Stonehill 24%. The jury found that fair and adequate total compensation to all plaintiffs would be $ 2,475,000.
Defendant’s main arguments are: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute. Defendant raised these issues when it moved, unsuccessfully, for involuntary dismissal upon the conclusion of plaintiffs’ presentation of evidence, R. 4:37-2(b), and for judgment at the close [***5] of all evidence, R. 4:40-1. For reasons that follow, we conclude that defendant is liable under the Statute and that the Statute does not bar the claims of trespassers.
Before discussing those issues, we note that, contrary to defendant’s contention, although plaintiffs were trespassers at the time of the accident their claims would not necessarily be barred at common law. ” [HN1] Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” Renz v. Penn Cent. Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981). The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Id. at 462, 435 A.2d 540. Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous. As this accident demonstrated, tobogganers who reached the bottom of the trail would be carried by momentum over the edge of a twenty-foot embankment resulting in serious injury.
[*313] The Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), [***6] signaled its movement away from the rigid common-law distinctions among the standards of care due trespassers, licensees and invitees. There the Court held that a real estate broker owed a duty of reasonable care to a prospective home buyer who was injured when she failed to notice a step and fell while viewing the premises. She was there to attend an “open house” conducted by the broker. In imposing a duty of care on the broker, thereby departing from the common-law requirement that only the property owner had such a duty, the Court said:
The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law.
[Id. at 438, 625 A.2d 1110]
Here, on one side of that relationship are young people attracted to a condominium because of its proximity [***7] to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, [**778] was a near-fatal trap to those using the trail to toboggan. Without having to decide the question, we suggest that even if the Ski Statute did not apply, the operator would have a common-law duty to take reasonable measures to warn such trespassers of that latent danger.
Indeed, such an obligation was recognized by defendant in its cross-claim against Stonehill. Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers. We add that [HN2] the duty of an owner or occupier of land to warn of such a serious [*314] danger may not be delegable. Hopkins, supra, at 441, 625 A.2d 1110 (citing Sanna v. National Sponge Co., 209 N.J.Super. 60, 506 A.2d 1258 (App.Div.1986)). [***8]
The Legislature enacted the Ski Statute in 1979 in response to a decision by the Vermont Supreme Court that deprived operators of ski areas of the absolute defense of assumption of risk. Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978), held that in adopting comparative negligence by statute the legislature of that state intended to replace the absolute defense of assumption of risk with the defense of plaintiff’s comparative negligence. Our Legislature was thus moved to consider whether its adoption of the doctrine of comparative negligence in 1973 left ski area operators unfairly vulnerable to personal injury actions caused by accidents that are an inherent risk of skiing and related sports such as toboganning. See generally Reisman v. Great Am. Recreation, 266 N.J.Super. 87, 92-95, 628 A.2d 801 (App.Div.), certif. denied, 134 N.J. 560, 636 A.2d 519 (1993).
[HN3] Actions against a ski operator for personal injuries sustained by a skier on its ski slope are governed by common-law negligence principles unless the Ski Statute applies. Reisman, supra,266 N.J. Super. at 97, 628 A.2d 801. [***9] The Statute, however, has wide application.
To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies. The common law, and not the Statute, was applied in Reisman because there the skier’s injury [*315] was the result of neither the violation of a statutory duty nor the assumption of a statutory risk. He was injured while properly proceeding slowly down a beginner’s slope when a drunken skier knocked him to the ground.
1 [HN4] N.J.S.A. 5:13-2c defines “skier” to include “a person utilizing the ski area for recreational purposes such as . . . operating toboggans.”
[HN5] Once it is determined that the [***10] Statute applies, one must look at N.J.S.A. 5:13-3, which lists the responsibilities of the ski operator. 2 If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence. N.J.S.A. 5:13-6.
2 [HN6] N.J.S.A. 5:13-2a defines “operator” to include “a person . . . who . . . manages . . . the operation of an area where individuals come to . . . operate . . . toboggans.”
Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:
A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise [***11] traverse any trail, slope or other [**779] area which is beyond the skier’s ability to negotiate.
Plaintiffs were not able to negotiate the Bunny Buster trail. It is also obvious that plaintiffs are deemed to have assumed at least one statutory risk. [HN8] N.J.S.A. 5:13-5 provides in part:
Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.
Given that assumption, plaintiffs acted in a manner that contributed to their own injury.
It is important to note that these [HN9] statutory violations and risk assumptions do not affect the percentage of a skier’s comparative [*316] negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.
A major issue at trial was whether [***12] defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:
a. It shall be the responsibility of the operator to the extent practicable, to:
* * * *
(3) Remove as soon as practicable obvious, man-made hazards.
Much of the confusion in arguing the liability issue at trial was caused by the next subsection of the Statute, which expressly excuses an operator from certain specific responsibilities to skiers. In that regard, [HN11] N.J.S.A. 5:13-3 provides in relevant part:
b. No operator shall be responsible to any skier or other person because of its failure to comply with any provisions of subsection 3.a. if such failure was caused by:
* * * *
(3) Subject to the provisions of subsection 3.a.(3), the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type. . . .
Plaintiffs argued that the man-made hazard for which defendant was responsible was fencing. At first they seemed to suggest that the snow fence was a direct cause of the accident because it constituted a ramp that “launched” the toboggan down the embankment. Defendant [***13] responded by claiming the benefit of subsection -3b(3), which relieved it of any responsibility for the “location” of “fencing” “necessary for the ordinary operation of the ski area.”
As plaintiffs developed their case with expert testimony, however, it became apparent that they were not claiming that the flimsy snow fence was a cause of the accident, but rather that a cause of the accident was defendant’s failure to erect a more resistant fence that would restrain a toboggan and its passengers from [*317] going over the edge of the embankment. Aside from whether such a fence would effectively reduce injury or be “practicable” (a requirement of section -3a), defendant argued that the absence of a stronger fence was still related to the location of fencing and therefore not actionable because of subsection -3b(3).
The trial judge rejected defendant’s argument when he denied its motions. He interpreted “man-made hazards” comprehensively to include the design of the trail, which directed toboggans, known to be difficult if not impossible to control, over the edge of the twenty-foot embankment and down to the parking lot and light pole. As he understood the Legislature’s intent, the requirement [***14] that operators “remove . . . man-made hazards” was broad enough to include warning people not to use the trail for tobogganing. The judge instructed the jury that “remove” not only means “to . . . uproot” but also means “to eliminate or reduce or obviate.” This left the jury free to decide whether the hazard of falling over the edge of the embankment could be removed by warnings. We agree with the trial judge.
[**780] [HN12] An obvious man-made hazard, as contemplated in N.J.S.A. 5:13-3a(3), is a man-made danger, obvious to an operator, that is not an inherent risk of using a “ski area.” A ski area is defined in part by N.J.S.A. 5:13-2b as real property “utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.” Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.
Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed [***15] all posted warnings.”
Defendant argues alternatively that even if plaintiffs may recover under the Ski Statute, the Statute does not apply to trespassers. We already suggested that even at common law, [*318] defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable. We find nothing in the statute that suggests that the Legislature meant to supplant the common law in that respect. The Statute does not exempt trespassers from the definition of skiers to whom operators have a limited responsibility. We quote the [HN13] N.J.S.A. 5:13-2c definition in full:
“Skier” means a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds or similar vehicles, and including anyone accompanying the person. Skier also includes any person in such ski area who is an invitee, whether or not said person pays consideration.
[Emphasis added.]
Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover [***16] under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.
Our understanding of the Legislature’s intent is fortified by a change in the Assembly bill before it became the Statute. The bill originally contained a section that read:
No operator shall be liable to any person who is a trespasser, which shall include, but not be limited to, persons using the facilities who fail, when required to do so, to pay lift fees or other fees required in connection with the use of these facilities. The operator shall be liable to skiers and others only as specified in this section.
[A. 1650, 198th Leg., 1st Sess. § 3(c) (1978).]
That provision was deleted before the Statute was adopted. The Statement accompanying the final version of the bill stated in part, “The complete removal of liability on the part of a ski area operator to trespassers would be eliminated.” Assembly Judiciary, Law, Public Safety and Defense Committee Statement to Assembly No. 1650 (November 20, 1978).
The two remaining arguments that we will briefly address are that the motion judge erroneously granted partial summary judgments to Maurizzi and to Carmelitano. [***17] The motions were properly granted.
[*319] There was no evidence presented in opposition to Maurizzi’s motion that he authorized plaintiffs to use his toboggan, which he had stored in his home. There was no evidence that a toboggan is so inherently dangerous that Maurizzi should have secured it from use by adults. There was no evidence that Maurizzi knew that using the toboggan on the Bunny Buster trail would be especially dangerous.
As to Carmelitano, although there was evidence, presented in opposition to her motion, that some members of the group drank beer at the condominium before the accident, there was no evidence that Carmelitano served the beer, much less that she served it to anyone who was visibly intoxicated. Indeed, there was no evidence that beer-drinking was a cause of the accident. See Gustavson v. Gaynor, 206 N.J.Super. 540, 503 A.2d 340 (App.Div.1985), certif. denied, 103 N.J. 476, 511 A.2d 655 (1986).
[**781] We are satisfied from a careful reading of this record that the remaining issues that defendant has raised in its brief are clearly without merit and therefore require no discussion. R. 2:11-3(e)(1)(E).
[***18] Affirmed.
2015-2016 In bound ski/board fatalities
Posted: March 9, 2016 Filed under: Avalanche, Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: Aspen, Bear Valley, Blue Mountain, Blue Mountain Ski Area, Burke Mountain, Burke Mountain Ski Area, Cascade Mountain, Cascade Mountain Ski Hill, Chair Lift, fatality, Heavenly Mountain, Jackson Hole, Mount Snow, Mt. Waterman, Park City, Park City Mtn Resort, ski area, skiing, Snoqualmie Pass, Snowbasin, snowboarding, Solider Mountain, Squaw Valley resort, Steamboat Springs Ski Resort, Tubing, Vail, Whiteface, Winter Park 2 CommentsThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of March 1, 2016. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Red type is natural or medical conditions that occurred inbounds on the slopes
Green Type is Fatalities while sledding at the Resort
Blue Type is a Lift Accidents
Purple Tye is Employee or Ski Patroller
2015 – 2016 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
11/29/15 |
CA |
Bear Mountain |
|
|
she collided with a metal stairway |
|
Ski |
21 |
F |
Jackson Township CA |
|
||
|
2 |
12/7/15 |
WY |
Jackson Hole |
Moran Run |
Blue |
Hit tree |
|
Board |
23 |
F |
Boston, MA |
Y |
||
|
3 |
12/15/15 |
CO |
Steamboat |
|
|
fell, landing face down in the snow |
|
Ski |
70 |
M |
Louisville CO |
|
||
|
4 |
12/19/15 |
WA |
Snoqualmie Pass |
Silver Fir |
|
tree-well |
|
Ski |
50 |
M |
North Bend, WA |
|
||
|
5 |
12/22/15 |
WY |
Jackson Hole |
Sundance run |
|
found inverted in a tree well |
|
Ski |
25 |
F |
Jackson Hole, WY |
Y |
||
|
6 |
12/23/15 |
NY |
Whiteface Lake Placid |
Summit Express |
Blue |
fell and struck his head |
blunt impact to the head |
Board |
26 |
M |
Litiz, PA |
N |
|
|
|
7 |
12/23/15 |
CA |
Bear Valley |
|
|
|
|
Ski |
71 |
M |
|
|
||
|
8 |
1/6/16 |
CO |
Vail |
|
|
|
tree well |
Board |
25 |
M |
Avon, CO |
|
||
|
9 |
1/12/16 |
UT |
Park City |
|
Intermediate |
|
|
|
60 |
M |
|
|
|
|
|
10 |
1/20 |
CO |
Keystone |
Elk Run |
|
Hit a tree |
|
|
27 |
M |
Boulder, CO |
|
||
|
11 |
1/24/16 |
VT |
Mount Snow |
Ripcord |
Double Diamond |
Hit Tree |
Blunt Force Trauma |
Board |
57 |
M |
Simsbury CT |
Yes |
||
|
12 |
1/28/16 |
CO |
Winter Park |
|
|
|
|
Skier |
24 |
M |
Kalamazoo, MI |
|
|
|
|
13 |
1/30/16 |
ID |
Solider Mountain |
|
|
Hit building |
|
Ski |
14 |
F |
Twin Falls, ID |
Yes |
||
|
14 |
2/3/16 |
PA |
Blue Mountain Ski Area |
|
|
|
blunt-force trauma |
|
35 |
M |
Tacoma, WA |
|
||
|
15 |
2/6 |
CA |
Mt. Waterman |
|
|
struck a tree |
|
|
60 |
M |
Winnetka, CA |
|
||
|
16 |
2/6 |
WI |
Cascade Mountain Ski Hill |
|
|
struck a tree |
|
|
24 |
F |
Oconto Falls, WI |
No |
||
|
17 |
2/6 |
UT |
Park City Mtn Resort |
Tombstone |
|
collapsed |
|
|
67 |
M |
UT |
|
|
|
|
18 |
2/15/16 |
VT |
Burke Mountain Ski Area |
Big Dipper Trail |
|
collided with a tree |
|
|
58 |
M |
Watertown |
No |
||
|
19 |
2/16 |
NV |
Heavenly Mountain Resort |
Crossover and Comet ski runs |
|
striking a tree |
|
|
77 |
F |
Madison, WI |
|
||
|
20 |
2/22/16 |
UT |
Snowbasin Ski |
Janis’ trail |
|
crashing into a tree, |
|
|
56 |
M |
NJ |
N |
|
|
|
21 |
2/22/16 (2/15) |
CO |
Aspen |
|
Taking Lesson |
Fell down |
Head injury |
|
68 |
M |
CO, |
|
||
|
22 |
2/22/16 |
NY |
Gore Mountain Ski Center |
|
Double Black Diamond |
struck several trees |
|
|
65 |
M |
Minerva, NY |
Y |
||
|
23 |
2/25 |
CO |
Beaver Creek |
|
Intermediate |
|
|
|
39 |
M |
Knoxville, TN |
|
||
|
24 |
2/26 |
MI |
Crystal Mountain |
Cheers Race Course |
Intermediate |
Lost control & slid backward |
|
|
58 |
M |
Traverse City, MI |
Y |
||
|
25 |
2/27 |
PA |
Seven Springs |
Wagner Trail |
|
Skier v. Skier Collision |
|
|
51 |
M |
Delmont |
|
||
|
26 |
2/27 |
|
Squaw Valley resort |
Headwall |
|
fell and slid down the slope through a stand of trees, suffering multiple injuries |
|
|
62 |
F |
Olympic Valley |
Y |
Download a PDF of this Chart Here: 2015 – 2016 Ski Season Deaths 3.2.16
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.
If you cannot read the entire chart you can download it here.
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What is Skiing? In New Hampshire, the definition does not include tubbing in 2004.
Posted: March 7, 2016 Filed under: New Hampshire, Ski Area, Snow Tubing | Tags: Definition, New Hampshire Skier Safety Act, Ragged Mountain, Skier, Snow Tubing, Tubing, tubing hill Leave a commentDefinition of the New Hampshire Skier Safety Act in 2004 was not written broadly enough to include tubing.
Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: Alaina Sweeney
Defendant: Ragged Mountain Ski Area, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: New Hampshire Skier Safety Act
Holding: Reversed and Remanded, sent back to trial for the Plaintiff
Year: 2004
Colorado’s ski area statute uses the term skier to describe anyone on the resort property. That means the term skier also includes snowboarders, telemark skiers, bike skiers, Nordic skier and tubers.
The plaintiff went tubing at the defendant’s tubbing hill. The hill was only for tubing and did not allow skiing on the tubing hill. No employees were present at the tubing hill when the plaintiff was tubing. While tubing she crossed from one lane to the other and collided with another tuber.
She sued, and the ski area argued to the trial court that the New Hampshire Ski Area Safety Act defined skier to include tubers. The trial court agreed and dismissed the complaint.
The plaintiff appealed.
Analysis: making sense of the law based on these facts.
The New Hampshire Ski Area Safety Act has been amended since this case to include in the definition of skier a snow tuber. At the time of this case, the definition of skier, which is what the controlled was defined “A “skier” is defined as “a person utilizing the ski area under the control of a ski area operator for the purpose of utilizing the ski slopes, trails, jumps or other areas.”
A court look or examining a statute cannot broaden the definitions in the statute unless the statute specifically grants the court that right. Although the courts are the final arbiter of a statute, the review is limited to what the legislature put into the statute.
We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent.
When a statute such as this one changes the common law, the statute must be interpreted strictly. The presumption in a law like this is the statute took away rights, not created or added additional ones. Here the statute created immunity for ski areas, taking away the common law right to sue so the statute was to be interpreted strictly.
Accordingly, then, immunity provisions barring the common law right to recover are to be strictly construed. We have often stated that we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent.
The court then looked at how ski slopes, trails, jumps or other areas were defined in the act to see if that included tubing hills. However, that definition was also specific and narrow.
Ski slopes, trails and areas” are further defined as “only those areas designated by the alpine or nordic ski operator on trail boards or maps . . . to be used by skiers for the purpose of participating in the sport of skiing.
Again, tubing was not part of the definition of the act. “Thus, a “skier” is limited to one who “participates in the sport of skiing,” and, as such, the statutory references to “skiers” necessarily inform our interpretation of the “sport of skiing.”
The court then went back and examined other parts of the New Hampshire Ski Safety Act to see if any part of the act could be used to provide protection to the ski area. The declaration, the first part of the statute detailing why the statute was created and the value of the statute to the state did not include a reference to tubing, only to skiing.
It shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and 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.
The court found that based on the declaration, the purpose and focus of the statute was for alpine and Nordic ski area. Because the plaintiff was not utilizing an alpine or Nordic slope, the plaintiff was not a skier. As such there was no protection afforded by the New Hampshire Skier Safety Act because the act, at the time of the lawsuit, only protected ski areas from skiers.
The trial court dismissal was overthrown, and the case sent back to proceed to trial.
So Now What?
There is an old adage that says the law grinds slowly but grinds finely. Meaning the law works slowly but when it works to solve the problem. Here the New Hampshire Skier Safety Act was probably enacted prior to the interest in tubing. Many other states with skier safety statutes have broader definitions of a skier who in most cases includes tubing. In some cases, the definition of a skier is a person on the ski area for any purpose.
Here the act was written narrowly, the definitions were not broad enough to include tubing. Nor were the definitions able to be broadened because that power was not provided to the court by the legislature when it passed the act.
Of real interest is the idea that no employees were present on the tubing hill at the time of the accident. It does not say, but the tubing hill probably did not include a lift and people walked up hill pulling a tube.
Either way, if you are in doubt as to whether or not a statute may provide protection to you for the activity you are selling, you should use a release.
What do you think? Leave a comment.
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Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126
Posted: March 6, 2016 Filed under: Legal Case, New Hampshire, Ski Area, Snow Tubing | Tags: Definition, New Hampshire Skier Safety Act, Ragged Mountain, Skier, Snow Tubing, Tubing, tubing hill Leave a commentSweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126
Alaina Sweeney v. Ragged Mountain Ski Area, Inc.
No. 2003-719
SUPREME COURT OF NEW HAMPSHIRE
151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126
May 6, 2004, Argued
July 15, 2004, Opinion Issued
SUBSEQUENT HISTORY: [***1] Released for Publication July 15, 2004.
PRIOR HISTORY: Merrimack.
DISPOSITION: Reversed and remanded.
COUNSEL: Wiggin & Nourie, P.A., of Manchester (Peter E. Hutchins on the brief and orally), for the plaintiff.
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief and orally), for the defendant.
JUDGES: GALWAY, J. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred.
OPINION BY: GALWAY
OPINION
[*240] [**428] GALWAY, J. The plaintiff, Alaina Sweeney, appeals an order of the Superior Court (Fitzgerald, J.) granting a motion to dismiss filed by the defendant, Ragged Mountain Ski Area, Inc. (Ragged Mountain). We reverse and remand.
The relevant facts follow. On March 21, 2001, the plaintiff went snow tubing at Ragged Mountain, which operates, among other things, snow tube runs. The snow tube area was designated only for snow tubing, and was not used for alpine or nordic skiing. When the plaintiff went snow tubing, no employees of Ragged Mountain were present to instruct her on the proper use of the snow tube. The plaintiff made a few “runs” down the snow tube trail. On [***2] her last run, she crossed the center line between snow tube lanes, [**429] continued down the adjacent lane, and ultimately collided with another snow tuber.
The plaintiff brought a negligence claim against Ragged Mountain for injuries sustained as a result of the collision. Ragged Mountain moved to dismiss, alleging that RSA 225-A:24, I (2000) barred recovery because it precludes claims brought by those injured in the “sport of skiing,” which, Ragged Mountain argued, includes snow tubing. The plaintiff argued that the statute does not apply to snow tubers. The court granted Ragged Mountain’s motion to dismiss.
On appeal, the plaintiff first argues that RSA 225-A:24, I, does not bar her claim because it does not apply to snow tubers. Because we agree, we need not address her other arguments.
The plaintiff contends that pursuant to RSA 225-A:24, I, ski area operators are granted immunity from liability only when claims are filed by those who participate in the “sport of skiing.” She argues that because snow tubing is not the “sport of skiing,” RSA 225-A:24, I, does not preclude her [***3] recovery. Ragged Mountain disagrees, arguing that the “sport of skiing” includes snow tubing.
[HN1] “In reviewing the trial court’s grant of a motion to dismiss, our task is to ascertain whether the allegations pleaded in the plaintiff’s writ are reasonably susceptible of a construction that would permit recovery.” Rayeski v. Gunstock Area, 146 N.H. 495, 496, 776 A.2d 1265 (2001) (quotation omitted). “We assume all facts pleaded in the plaintiff’s writ are true, and we construe all reasonable inferences drawn from those facts in the plaintiff’s favor.” Id. “We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law.” Id. (quotation omitted). If the facts fail to constitute a basis for legal relief, we will uphold the granting of [*241] the motion to dismiss. Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673, 674-75, 846 A.2d 521, 523 (2004).
The question before us is one of statutory interpretation-whether RSA 225-A:24, I, grants immunity to ski area operators against claims for injuries brought by snow tubers. [HN2] We are the final arbiter of the intent of the legislature as expressed in [***4] the words of the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515, 842 A.2d 77 (2004). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent. Id.
Furthermore, [HN3] “statutes in derogation of the common law are to be interpreted strictly.” 3 N. Singer, Sutherland Statutory Construction § 61:6, at 255 (6th ed. rev. 2001). While a statute may abolish a common law right, “there is a presumption that the legislature has no such purpose.” Id. § 61.1, at 222. If such a right is to be taken away, “it must be noted clearly by the legislature.” Id. at 222-23. Accordingly, then, immunity provisions barring the common law right to recover are to be strictly construed. We have often stated that we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent. See State v. Hermsdorf, 135 N.H. 360, 363, 605 A.2d 1045 (1992); see also Douglas v. Fulis, 138 N.H. 740, 742, 645 A.2d 76 (1994). [***5]
RSA 225-A:24, entitled, “Responsibilities of Skiers and Passengers,” states, in relevant part:
[HN4] It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing as [**430] a sport 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 accepts as a matter of law, the dangers inherent in 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; . . . 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.
[*242] RSA 225-A:24, I (emphasis added). As we have previously [***6] held, RSA 225-A:24, I, [HN5] limits skiers’ recovery, thereby functioning as an immunity provision for ski area operators. See Nutbrown v. Mount Cranmore, 140 N.H. 675, 680-81, 671 A.2d 548 (1996). In enacting this provision, “the legislature intended to supersede and replace a skier’s common law remedies for risks inherent in the sport of skiing.” Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 7 (1st. Cir. 1991). The question we must answer today is whether that statute also replaces the plaintiff’s common law remedy. In answering this question, we need not precisely define the “sport of skiing,” nor list every activity encompassed within that phrase.
Because the phrase “sport of skiing,” is not specifically defined, we look to other provisions of the statutory scheme for guidance. [HN6] A “skier” is defined as “a person utilizing the ski area under the control of a ski area operator for the purpose of utilizing the ski slopes, trails, jumps or other areas.” RSA 225-A:2, II (2000). “Ski slopes, trails and areas” are further defined as “only those areas designated by the alpine or nordic ski operator [***7] on trail boards or maps . . . to be used by skiers for the purpose of participating in the sport of skiing.” RSA 225-A:2, IV (2000) (emphasis added). Thus, a “skier” is limited to one who “participates in the sport of skiing,” and, as such, the statutory references to “skiers” necessarily inform our interpretation of the “sport of skiing.”
We next look to the declaration of policy set forth at the beginning of the statutory scheme for guidance. See RSA 225-A:1 (2000). RSA 225-A:1 states, in part:
[HN7] It shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and 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.
(Emphasis added.) This provision indicates that the focus of the statutory scheme is upon those who utilize alpine and nordic areas. It further indicates that [***8] alpine areas are those used for downhill activities, while nordic areas are those used for cross country activities and ski jumps. While utilizing the alpine and nordic areas may not be the sole, defining characteristic of a skier, the policy provision indicates that it is an essential characteristic nonetheless.
Here, the plaintiff was not utilizing an alpine or nordic slope. Rather, as the trial court found, she was utilizing a snow tube run designated [*243] exclusively for snow tubing. Accordingly, we do not believe [**431] she was a skier, or other user of alpine or nordic areas, and, therefore, we cannot conclude that she “participated in the sport of skiing” as intended by the legislature in RSA 225-A:24, I.
Although Ragged Mountain looks to the same statutory provisions we have referenced for support, we believe those provisions are consistent with our more narrow interpretation of RSA 225-A:24, I. [HN8] Nothing in those provisions clearly expresses a legislative intent to preclude a snow tuber, injured while sliding down a run used exclusively for snow tubing, from recovering for her injuries. See Hermsdorf, 135 N.H. at 363. [***9]
Ragged Mountain first relies upon the statutory definition of “skier,” RSA 225-A:2, II, to support its position. Given that the statute broadly defines “skier,” Ragged Mountain argues that the “sport of skiing” must be similarly broadly defined. We disagree. Ragged Mountain errs in reading the definition of “skier” in isolation. As explained above, [HN9] when that definition is read in conjunction with RSA 225-A:2, IV and RSA 225-A:1, it appears that a “skier” does not include a person snow tubing on a track designated solely for snow tubing. At the very least, we cannot conclude that the statute “clearly expresses” an intent to abrogate the common law right to recover of a snow tuber injured while using a track designated solely for snow tubing. Hermsdorf, 135 N.H. at 363.
Ragged Mountain also relies upon RSA 225-A:1, the policy provision prefacing the statutory scheme, to support its claim. It argues that because the policy provision of the statute “clearly encompasses more than traditional downhill skiing,” the “sport of skiing” must include snow tubing.
[HN10] To the extent [***10] that RSA 225-A:1 contemplates winter sports activities other than skiing, it is concerned only with winter sport activities that occur on alpine and nordic slopes. See RSA 225-A:1. The plaintiff in the instant case was not utilizing an alpine or nordic slope, but rather was injured while utilizing a snow tube on a track designated solely for snow tubing. Nothing in the policy provision, then, clearly expresses the legislative intent to extinguish the common law claims of snow tubers injured on a track designated solely for snow tubing.
Because Ragged Mountain cannot point to a statutory provision that clearly expresses a legislative intent to abrogate the plaintiff’s common law right to recover, we conclude that the plaintiff’s claim is not precluded by RSA 225-A:24, I. See Hermsdorf, 135 N.H. at 363. We reverse the trial court’s order granting Ragged Mountain’s motion to dismiss and remand [*244] for further proceedings consistent with this opinion. In light of our opinion, we need not address the plaintiff’s remaining arguments on appeal.
Reversed and remanded.
BRODERICK, C.J., and [***11] NADEAU, DALIANIS and DUGGAN, JJ., concurred.
Snow and Avalanche Laboratory at Montana State University Research Project you might win a pair of G3 Skis
Posted: March 5, 2016 Filed under: Avalanche | Tags: G3, Gunuine Guide Gear, Ion Bindings Leave a comment
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Skiing collision in Utah where the collision was caused by one skier falling down in front of the other skier
Posted: February 29, 2016 Filed under: Skier v. Skier, Skiing / Snow Boarding, Utah, Youth Camps | Tags: Collision, Downhill Skier, skier collision, skier v. skier, Uphill Skier, Utah Leave a commentIs that a collision, an obstacle, a reason for a lawsuit? Skiers fall all the time.
State: Utah, Court of Appeals of Utah
Plaintiff: Gary Ricci
Defendant: Charles Schoultz, M.D.
Plaintiff Claims: Negligence
Defendant Defenses: no negligence
Holding: for the defendant
Year: 1998
Sometimes you stumble across a case that catches your eye from the way the facts are described by the court. This is one of them.
The two skiers were advanced skiers skiing on an easy run. Both were skiing under control. The defendant was part of a ski school class. The defendant was taking small easy turns as part of his class. Just as he was being passed by the plaintiff, he reached the top of a crest and slowed down, lost control and fell into the path of the plaintiff.
The two collided and slid into a tree at a high rate of speed. The plaintiff hit the tree suffering injuries. The defendant was able to ski away on his own.
At trial, the plaintiff argued that the defendant was negligent because he fell on an easy run.
At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, there was no possible reason for Schoultz to have fallen except for his own negligence.
The jury found the defendant was negligent and returned a verdict in favor of the plaintiff. The trial judge then granted the defendant’s j.n.o.v. (judgment notwithstanding the verdict). This was based on the court’s opinion that there was no negligence on the part of the defendant. “There was a duty not to be negligent. However, there was no negligence on the part of the defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial.”
A JNOV is a fantasy. They never occur because as long as there is some evidence of negligence and a decision by the jury a trial judge is not going to overturn a jury verdict. To overturn a judgment by a jury the trial judge:
…[is] justified in granting a j.n.o.v. only if, after looking at the evidence and all of its reasonable inferences in a light most favorable to [the nonmoving party], the trial court concludes that there [is] no competent evidence to support a verdict in [the nonmoving party’s] favor.
Consequently, the burden to grant a JNOV and overturn the jury’s verdict is very high and never done.
The appellate court has the same standard in reviewing a JNOV granted by the trial court.
“On appeal, we apply the same standard. In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts and evidence that tend to disprove its case. Thus, if we determine that there was competent evidence supporting the jury’s verdict, we must reverse the trial court’s grant of the j.n.o.v.
The plaintiff appealed the JNOV which granted a judgment for the defendant.
Analysis: making sense of the law based on these facts.
The appellate court looked at other collision cases were the cases rested on whether or not the defendant was negligent. Something was required to support the idea that the plaintiff was negligent in those cases that had found negligence, such as the defendant drinking a large quantity of alcohol.
The court found several cases where collisions on the slopes had occurred, but the defendant was found not to be liable because there was no evidence of negligence on the part of the defendant.
…the Tenth Circuit Court of Appeals affirmed the trial court’s ruling that the plaintiff could not recover from defendant for injuries sustained in a mid-mountain ski collision. Similar to the case at bar, the defendant was skiing behind the plaintiff and failed to alert plaintiff of his presence before they collided. The LaVine court specifically rejected the appellant’s claim of negligence: “Appellant contends that the collision itself conclusively establishes the defendant’s negligence and the plaintiff’s right to recover. We disagree.”
In another decision the court reviewed, there was the same statement that care was owed by the defendant. The defendant is not the insurer of the plaintiff and not responsible for everything that happens to a skier on the slopes.
The Dillworth court stated some collisions between skiers may be as a result of the obvious and necessary risks inherent in skiing, and accidents might occur despite the exercise of ordinary and reasonable care and without negligence by either skier. . . . Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. . . . Thus . . . skiers who lose control even while exercising due care–that is, have breached no duty owed to other skiers–may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing.
The court found that falling down on the slope is not proof of negligence. Without something to indicate that the defendant was negligent, a plaintiff cannot recover.
In sum, a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty. We conclude, after a careful review of the trial record, that Ricci failed to introduce any competent evidence that Schoultz was skiing negligently before his sudden and unexpected fall in front of Ricci. Ricci himself testified about the conditions and events just before the accident, noting that up to one second before the collision, Schoultz was skiing in control.
Ricci’s evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently.
The appellate court upheld the trial court’s granting of the JNOV and did not look at the other issues raised by the plaintiff on appeal.
There was a dissent in the opinion that argued there was enough evidence based on his analysis of the facts to support the jury finding. However, the facts presented were circumstantial based on the dissenting judge’s review of the evidence.
So Now What?
This was a rare case. There seems to be an assumption in all ski collision cases that if two people are on a slope together, and they collide with one person must have been negligent. This decision and the two other decisions the court pointed out show that is not the case. Not every collision on a ski slope is a negligent act.
At the same time, this is fairly easy to see and understand the issues because the party causing the collision, even though the “downhill” skier was the party that probably generated the issues to start the collision.
However, falling down is not negligence on a ski slope, at least in Utah.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Ricci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745
Posted: February 28, 2016 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Skier v. Skier, Skiing / Snow Boarding, Utah | Tags: Collision, Downhill Skier, skier collision, skier v. skier, Uphill Skier, Utah Leave a commentRicci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745
Gary Ricci, Plaintiff and Appellant, v. Charles Schoultz, M.D., Defendant and Appellee.
Case No. 971189-CA
COURT OF APPEALS OF UTAH
963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745
July 23, 1998, Filed
PRIOR HISTORY: [**1] Third District, Salt Lake Department. The Honorable Homer F. Wilkinson.
COUNSEL: Jeffrey D. Eisenberg, Alan W. Mortensen, and Paul M. Simmons, Salt Lake City, for Appellant.
Paul M. Belnap, Robert L. Janicki, and Darren K. Nelson, Salt Lake City, for Appellee.
JUDGES: Before Judith M. Billings, Judge. I CONCUR: Russell W. Bench, Judge. Gregory K. Orme, Judge, Dissenting.
OPINION BY: JUDITH M. BILLINGS
OPINION
[*785] OPINION
BILLINGS, Judge:
Appellant Gary Ricci appeals the trial court’s grant of a judgment notwithstanding the verdict (j.n.o.v.) to Dr. Charles Schoultz, dismissing Ricci’s negligence claims. We affirm.
FACTS
The parties had completely different versions of how the accident occurred. [HN1] “We must review the record and determine whether there is any basis in the evidence, including reasonable inferences which could be drawn therefrom, to support the jury’s determination that [Schoultz] was negligent.” Braithwaite v. West Valley City Corp., 921 P.2d 997, 999 (Utah 1996). Thus, we recite the facts in a light most favorable to Ricci.
On April 12, 1994, Ricci and Schoultz were skiing [**2] at Snowbird Ski Resort (Snowbird) in Salt Lake County, Utah. Both parties were advanced skiers. On the sunny morning of the accident they were skiing an “easy run” that was groomed and had only a few skiers on it. Schoultz was skiing down Anderson Hill when Ricci reached the top of the run. Ricci began to ski towards the bottom and in the direction of Schoultz. Schoultz was taking a ski lesson and was making a number of small controlled turns as he descended. Schoultz and Ricci were both skiing at the same speed and in control throughout their descent. However, Schoultz slowed as he approached a small crest on the ski run and Ricci closed to within a few feet behind Schoultz. Schoultz unexpectedly lost control of his skis, and within a few seconds he fell to the left, and into Ricci, who was unable to avoid Schoultz. The two skiers slid into a tree well, with Ricci striking the tree with some force. Ricci suffered significant injuries and was eventually life-flighted to a local hospital. Schoultz was merely bruised and skied down the mountain on his own.
At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, [**3] there was no possible reason for Schoultz to have fallen except for his own negligence. The jury found that Schoultz was negligent, and that his failure to ski in control was the cause of the accident. Schoultz moved for a j.n.o.v. on the grounds that Ricci failed to demonstrate that Schoultz, by falling unexpectedly in front of him, had breached any duty he owed to Ricci. The trial judge agreed: “There was a duty not to be negligent. But there was no negligence on the part of defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial. Ricci now appeals.
STANDARD OF REVIEW
Our standard for reviewing a trial court’s grant of a j.n.o.v. is strict: [HN2] “‘In passing on a motion for a j.n.o.v., . . . a trial court has no latitude and must be correct.'” Braithwaite, 921 P.2d at 999 (quoting Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991)). Further,
“The trial court [is] justified in granting a j.n.o.v. only if, after looking at the evidence and all of its reasonable inferences in a light most favorable to [the nonmoving party], the trial court concludes that there [is] no competent evidence to support [**4] a verdict in [the nonmoving party’s] favor.”
Id. (quoting Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1066 (Utah 1996)). “On appeal, we apply the same standard. In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts [*786] and evidence that tend to disprove its case.” Gold Standard, 915 P.2d at 1066 (citing Koer v. Mayfair Mkts., 19 Utah 2d 339, 340, 431 P.2d 566, 568-69 (1967) (additional citation omitted). Thus, if we determine that there was competent evidence supporting the jury’s verdict, we must reverse the trial court’s grant of the j.n.o.v.
ANALYSIS
Although there is no helpful Utah authority, other state and federal courts have dealt with similar ski collision cases.
In LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 735 (10th Cir. 1977), the Tenth Circuit Court of Appeals affirmed the trial court’s ruling that the plaintiff could not recover from defendant for injuries sustained in a mid-mountain ski collision. Similar to the case at bar, the defendant was skiing behind [**5] the plaintiff and failed to alert plaintiff of his presence before they collided. See id. at 735. The LaVine court specifically rejected the appellant’s claim of negligence: “Appellant contends that the collision itself conclusively establishes the defendant’s negligence and the plaintiff’s right to recover. We disagree.” Id.
More recently, in Dillworth v. Gambardella, 970 F.2d 1113, 1114 (2d Cir. 1992), the Second Circuit Court of Appeals dealt with a similar issue: “Whether collisions between skiers require as a matter of law . . . a finding of negligence on the part of at least one skier.” In Dillworth, the parties had significantly different versions of the facts leading up to the mid-mountain collision, but the result was the same as this case–significant injuries to the party bringing the cause of action. See id. at 1114-15. The Dillworth court stated [HN3] some collisions between skiers may be as a result of the obvious and necessary risks inherent in skiing, and accidents might occur despite the exercise of ordinary and reasonable care and without negligence by either skier. . . . Like all others, skiers owe that degree of care an ordinary prudent person [**6] would exercise under like or similar circumstances. One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. . . . Thus . . . skiers who lose control even while exercising due care–that is, have breached no duty owed to other skiers–may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing.
Id. at 1122 (citing LaVine, 557 F.2d 734-35) (additional citations omitted).
Cases that have supported a finding of negligence in a ski collision have required proof of some negligent conduct before the collision. For example, in Freeman v. Hale, 30 Cal. App. 4th 1388, 36 Cal. Rptr. 2d 418, 420 (Cal. Ct. App. 1994), two skiers collided while descending a ski slope and the plaintiff suffered severe injuries as a result of the accident. In Freeman, however, the defendant had consumed a large quantity of alcohol, and was inebriated when the collision occurred. See 36 Cal. Rptr. 2d at 420. The California Court of Appeals succinctly summarized its conclusion that a negligence regime was the proper way to analyze liability: “While Hale did not have a duty [**7] to avoid an inadvertent collision with Freeman, he did have a duty to avoid increasing the risk of such a collision.” Id. at 423-24 (citing Knight v. Jewett, 3 Cal. 4th 296, 834 P.2d 696, 710-11 (Cal. 1992)). The Freeman court concluded that alcohol consumption was not an integral aspect of skiing, and that by consuming alcohol prior to and during his skiing, defendant breached his duty to plaintiff “‘not to increase the risks to a participant over and above those inherent in the sport.'” 36 Cal. Rptr. 2d at 421 (quoting Knight, 834 P.2d at 710).
In sum, [HN4] a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty. We conclude, after a careful review of the trial record, that Ricci failed to introduce any competent evidence that Schoultz was skiing negligently before his sudden and unexpected fall in front of Ricci. Ricci himself testified about the conditions and events just before the accident, noting that up to one second before the collision, Schoultz was skiing in control. Schoultz’s [*787] loss of control and fall, by itself, does not establish his negligence.
Ricci’s [**8] evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently. We conclude the trial court was correct in determining that Schoultz did not breach his duty of reasonable care to Ricci by accidentally falling into Ricci when there was no evidence that Schoultz was skiing negligently at the time of his fall. Because we agree with the trial court’s ruling, we do not reach the questions of whether a new trial should have been granted or whether the trial court’s decisions to exclude Schoultz’s expert witness testimony were proper.
CONCLUSION
Some collisions between skiers are an inherent risk of skiing and may occur absent negligence, as in this case. Thus, we affirm the trial court’s grant of a judgment notwithstanding the verdict.
Judith M. Billings, Judge
I CONCUR:
Russell W. Bench, Judge
DISSENT BY: GREGORY K. ORME
DISSENT
ORME, Judge (dissenting):
By focusing on the evidence plaintiff presented, rather than all evidence in the record and the reasonable inferences that can be drawn therefrom, my colleagues take a too narrow view of our role in reviewing a trial court’s reversal of a [**9] jury’s verdict. Simply stated, the question is not whether the evidence plaintiff presented supports the jury’s verdict; rather, it is whether any evidence from whatever source will support it. See Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1066 (Utah 1996) (“In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts and evidence that tend to disprove its case.”). As the Fifth Circuit has noted,
on motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence– not just that evidence which supports the non-mover’s case–but in the light and with all reasonable inferences most favorable to the party opposed to the motion.Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336, 339 (5th Cir. 1997). Accord Guilbeau v. W. W. Henry Co., 85 F.3d 1149, 1161 (5th Cir. 1996), cert. denied, 136 L. Ed. 2d 713, 117 S. Ct. 766 (1997); Lamb [**10] ex rel. Shepard v. Sears, Roebuck & Co., 1 F.3d 1184, 1187 (11th Cir. 1993); Epoch Producing Corp. v. Killiam Shows Inc., 522 F.2d 737, 743 (2d Cir. 1975), cert. denied, 424 U.S. 955, 47 L. Ed. 2d 360, 96 S. Ct. 1429 (1976); Anderson v. Lykes Pasco Packing Co., 503 So. 2d 1269, 1271-72 (Fla. Dist. Ct. App. 1986); Millet v. Cormier, 671 So. 2d 1101, 1107-08 (La. Ct. App.), cert. denied, 673 So. 2d 1036 (La. 1996).
In this case, the jury might well have believed defendant’s testimony that he was skiing in complete control until immediately before the accident, that his skis did not come apart, and that he did not fall. Rejecting defendant’s testimony that he was hit from behind by plaintiff, which was essentially impossible given where the two ended up after the collision, the jury was also free to disbelieve plaintiff’s recollection that defendant’s skis separated and defendant merely fell into plaintiff’s path. The jury could nonetheless have believed plaintiff’s testimony that, immediately prior to the collision, he was skiing in control and a safe distance from defendant and defendant’s apparently intended route. Mindful that plaintiff and defendant ended up [**11] in a heap well off the ski run, in a position consistent with defendant hitting into plaintiff at high speed, the jury might well have inferred that the only way the accident could have occurred was if defendant, fully in control, carelessly and precipitously turned sharply to the left, hitting the unsuspecting plaintiff, who had every reason to assume defendant was going to continue with his pattern of tight turns as plaintiff passed uneventfully on the left.
To be sure, this is not exactly the theory plaintiff developed at trial, but it is a scenario that emerges quite readily if one reviews all the evidence and all reasonable inferences that could be drawn therefrom in the light [*788] most favorable to the jury’s verdict. If that is what the jury concluded, then the accident was caused by defendant’s negligence, not an inadvertent fall. Accordingly, the trial court should not have disturbed the jury’s verdict, and we should reinstate it.
Gregory K. Orme, Judge
Skier is unable to hold ski area liable in Vermont for injuries received in an unknown way from an unknown person.
Posted: February 15, 2016 Filed under: Ski Area, Skiing / Snow Boarding, Vermont | Tags: Causation, Jay Peak, Pro Se, Pro Se Plaintiff, Proximate Causation, ski area, Vermont 1 CommentSecond Circuit bends over backwards to assist pro se plaintiff who fails to prove his case.
Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768
State: Vermont, United States Court of Appeals for the Second Circuit
Plaintiff: Paul A. Gemmink,
Defendant: Jay Peak Inc.
Plaintiff Claims: negligently permitted dangerous jumps on its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side
Defendant Defenses: No Duty and No Negligence
Holding: For the Defendant
Year: 2015
This case is a rarity; it is a decision by the Second Circuit Court of Appeals. That court is one step below the US Supreme Court and one of the highest courts in the land. Consequently, to have any of the federal appellate courts issue an opinion about a skiing case is very rare. The Second Circuit Court of Appeals hears appeals from federal courts in New York, Connecticut, and Vermont.
The second issue making this case rare but sort of explains the reason why the Second Circuit heard the case, is the case is Pro Se. That means the Plaintiff was representing himself without an attorney. Pro Se cases are rarely successful and are very difficult for all the parties involved because of the procedural issues a litigant must follow to stay in court. Lawyers take a yearlong class on civil procedure in law school and work overtime not to miss procedural deadlines.
At the same time, judges bend over backwards and here the Second Circuit did too, to make sure the Pro Se litigant has the best opportunity to have his or her day in court.
Consequently, when the plaintiff, Gemmink, who was pro se lost at the trial level and successfully filed an appeal to the Second Circuit, the court based on the decision bent over backwards to respond to the plaintiff’s claims.
The plaintiff and his daughter were skiing at the defendant ski area Jay Peak. The plaintiff was following his daughter down the hill. The daughter reached the bottom of the hill and realized her father was not with her.
The plaintiff was found unconscious or regaining consciousness and combative up on the hill by the ski patrol. The plaintiff had no memory of what happened.
The plaintiff was found near trees. The daughter had seen a ski jump close to the location of where her father was found “leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink.” The plaintiff’s injuries were such that he attributed them to someone coming from the right and were consistent with the theory that someone going over the jump hit him.
Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore, at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.
The trial court dismissed the claims of the plaintiff for failing to establish that the defendant’s alleged negligence was the cause of his injuries. The plaintiff successfully filed this appealed to the Second Circuit Court of Appeals.
Analysis: making sense of the law based on these facts.
The court, as usual started its decision with the requirements for a party to defeat a motion for summary judgment.
Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.”
The court adopted the theory relied upon by the trial court, that the structure and maintenance of the alleged ski jump was sufficient to cause the injuries the plaintiff claimed based on the facts the plaintiff alleged. Again, this is rarely done when all parties are represented by attorneys. The attorney relying on this assumption would have to prove it using evidence.
The court then summarized its requirements in this case to determine whether the plaintiff presented enough evidence for a jury to rule in his favor.
The issue before us, then, is a not-infrequent one in tort cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.
Thus the issue was explained to require a showing of evidence sufficient to prove that the defendant was the reason why the plaintiff was injured, and that injury was based on a breach of duty to the plaintiff by the defendant ski area.
Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that, in fact, occurred?
Here the court obviously looked at the issue as to whether the plaintiff assumed the risk, not based on what the defendant had done or failed to do, but based on whether the sport or the actions of the plaintiff were the cause for his injuries.
In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.
Here the evidence was solely circumstantial. There was no video, no witnesses, and no pictures, nothing to assist the plaintiff in proving his case other than the plaintiff and his daughter’s opinion and the injuries which could be been occurred as the plaintiff surmised. When only circumstantial evidence is available at trial, then the burden to prove the facts falls on the party using the evidence, but that burden is greater because of the nature of the evidence.
First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis of finding negligence under the doctrine of res ipsa loquitur.
In this case, the only party with any knowledge or access to the information was the plaintiff, thus the plaintiff had the sole burden to prove his circumstantial evidence.
Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.
The court then brought in another issue, whether the circumstantial evidence offered by the plaintiff under the law of the state that is being applied, Vermont, allows for an error in determining the value or likelihood of the evidence. Meaning if there is a gray area in valuing the evidence does state law fall one way or the other, in making the final determination on its value.
If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished.
The court then applied the three factors to this case. The first was whether there was a legal link between the maintenance of the ski jump and the injuries of the plaintiff. Maintenance in this case does not mean creation or grooming of the jump as in a terrain park, but whether the jump was allowed to exist by the defendant. The court found that any link was too tenuous to allow.
The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency.
This, the first argument, went in favor of the defendant. The court added in reaching this decision, that the plaintiff offered no additional evidence or expert witness to show a stronger link.
Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well-founded knowledge and can do no more than indulge in mere speculation.
The second issue, who had evidence on what happened, the court found neither side won or actually it was a neutral result based on an analysis. “The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.”
The third factor was interesting. Applying the test of how the state wanted the court to decide when faced with an issue that was “close call” or in a very small gray area. Here the court found that under Vermont law, the liability of a ski area is almost strict liability. That means liability with no room for error or limited if any defenses. Own a ski area and you own the safety of the people you invite to ski on the mountain.
We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?
The court determined that Vermont follows the approach of symmetrical indifference. Vermont still allowed the defense of assumption of the risk for injuries caused by engaging in a sport. The court then found that Vermont prefers to err on the side of finding no causation. Meaning any cause of the injury must be proven not just alleged. If there was a gray area after analysis by the court, meaning if there was no clear decision, then Vermont law held there was not caused, thus no negligence.
By statute, although assumption of risk has generally been subsumed in comparative negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred.
The Vermont law concerning ski areas was proof of that issue. (See Vermont Skier Safety Act) Vermont law was interpreted by Vermont courts to offer a symmetrical approach how Vermont wants a court to consider the facts.
The court then applying the factors controlling how Vermont law was to be applied and found it could not find a link between the defendant ski area Jay Peak and the plaintiff’s injuries. There was no causation or link between the two that could be upheld legally.
Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.
For negligence to exist, there must be a duty, a breach of that duty and injury and proximate causation. Here the court did not look at whether or not there was a duty, but just focused on whether there is a legal relationship, causation, between the injuries and anything the defendant had done.
The Second Circuit Court of Appeals upheld the trial court decision and affirmed the dismissal of the plaintiff’s case.
So Now What?
As you can tell the court jumped through narrow hoops to provide a way to say to the plaintiff you did not prove your case and based on what you have provided cannot prove your case. I seriously doubt the court has ever created such a difficult to write and understand, yet reasoned decision before.
When confronted with a pro se plaintiff, I constantly begged them to find an attorney. I wanted someone other than the opposing attorney to explain what was going on and why. I copied and sent the law, sent notices of deadlines and requirements all in an attempt to allow the court to rule in my favor. Not because of what I did, but because the opposing side had no case and the court did not need to extend the case any longer than necessary before ruling to make sure the opposing party received a fair and just hearing.
This decision also would have been much different in most other states that allow skiing. Vermont, the largest ski state in the East has always held that ski resorts are liable for the injuries of its patrons. (See The very first lawsuit against a ski area reviewing Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524) Because of Vermont’s unique view of the responsibility of a ski area, to dismiss a case against a ski resort creates a difficult decision when explaining a case clearly without any evidence of fault against the defendant ski area.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
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Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768
Posted: February 8, 2016 Filed under: Legal Case, Ski Area, Skiing / Snow Boarding, Vermont | Tags: Causation, Jay Peak, Pro Se, Pro Se Plaintiff, Proximate Cause, Second Circuit Court of Appeals, ski area, Vermont Leave a commentTo Read an Analysis of this decision see
Skier is unable to hold ski area liable in Vermont for injuries received in an unknown way from an unknown person.
Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768
Paul A. Gemmink, Plaintiff-Appellant, — v. — Jay Peak Inc., Defendant-Appellee.
Docket No. 14-2725-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
807 F.3d 46; 2015 U.S. App. LEXIS 20768
August 19, 2015, Argued
November 30, 2015, Decided
PRIOR HISTORY: [**1] Pro se plaintiff Paul Gemmink was injured while skiing at defendant Jay Peak’s ski resort. Although Gemmink could not recall the circumstances of his injury, he came to believe that he had been injured in a collision with another skier as a result of Jay Peak’s negligent maintenance of ski jumps on its property. As a result, Gemmink brought an action to recover against Jay Peak for his injuries. The District Court granted summary judgment to Jay Peak, finding that Gemmink had failed to establish that any negligence on the part of Jay Peak was the cause of Gemmink’s injuries. We affirm the judgment of the District Court.
Gemmink v. Jay Peak, Inc., 2014 U.S. Dist. LEXIS 87912 (D. Vt., June 23, 2014)
COUNSEL: PAUL A. GEMMINK, Pro se.
THOMAS P. AICHER, Cleary Shahi & Aicher, P.C., Rutland, VT, for Defendant-Appellee.
JUDGES: Before: CALABRESI, STRAUB, POOLER, Circuit Judges. Judge POOLER joins only Parts I and II(B) of the opinion.
OPINION BY: CALABRESI
OPINION
[*47] CALABRESI, Circuit Judge:
I. BACKGROUND
On February 21, 2011, Paul Gemmink and his daughter, Christine, visited the [*48] Jay Peak ski resort in Jay, Vermont. The two skied down the Northwest Passage trail, with Christine preceding her father as she turned onto the Kokomo trail, which intersected the Northwest Passage trail. When Christine reached the base [**2] of the ski lift at the end of the trail, she noticed that her father had failed to follow her descent. Instead, a Jay Peak ski patroller would find Gemmink “combative and in obvious pain,” lying on his back by a tree on the left side of the Kokomo trail, near the Kokomo-Northwest Passage intersection. App’x at 31. Gemmink had been rendered unconscious and, though argumentative, could not recall or provide an account of the incident. Christine, however, had observed a ski jump situated near the trees on the right side of the intersection, leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink. Id. at 30, 32. Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.
Proceeding pro se, Gemmink brought this action against Jay Peak to recover for injuries that he claims were sustained as a result of Jay Peak’s negligence. Specifically, Gemmink asserts that Jay Peak negligently permitted dangerous jumps on [**3] its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side. The District Court (Murtha, J.) granted Jay Peak’s motion for summary judgment, finding that Gemmink had failed to establish that Jay Peak’s alleged negligence was the cause of his injuries. Gemmink now appeals.
II. DISCUSSION
A.
[HN1] This Court reviews a grant of summary judgment de novo. Amerex Group, Inc. v. Lexington Ins. Co., 678 F.3d 193, 199 (2d Cir. 2012). [HN2] Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). [HN3] The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015).
Before the district court, it was assumed that the negligence of Jay Peak in the structure and maintenance of the jumps was sufficiently made out to survive summary judgment. Accordingly, for purposes of this opinion, we will assume arguendo that Gemmink has established such [**4] a potential basis for liability on the part of Jay Peak. The issue before us, then, is a not-infrequent one in torts cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.
As Professor Abraham has demonstrated in his recent article, [HN4] a showing of cause-in-fact almost always involves circumstantial evidence. See Kenneth S. Abraham, Self-Proving Causation, 99 Va. L. Rev. 1811, 1815-16 (2013). Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is [*49] likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that in fact occurred?
In such circumstances, as then-Chief Judge Cardozo set out in Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (N.Y. 1920), a jury can assume that the injury occurred as the expected or ordinary result of the defendant’s conduct. Id. at 816. If for some reason it was not the ordinary result of the defendant’s conduct, that the “extraordinary” had occurred must be shown by the party [**5] wishing to counter causation. For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.
[HN5] In addition to considering the strength of the circumstantial evidence linking injury and harm, however, the cases dealing with questions of causation take into account two other factors. First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis [**6] of finding negligence under the doctrine of res ipsa loquitur. See, e.g., Griffen v. Manice, 166 N.Y. 188, 194-96, 59 N.E. 925 (1901). But it also serves as a basis for finding causation. See Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d 112, 120-21 (2d Cir. 2006); Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411, 431-32 (2d Cir. 2004) (Calabresi, J., concurring). Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.
But cases of this sort also involve a third factor. Thus, [HN6] in deciding whether sufficient proof of causation has been proffered to get to a jury, courts consider whether the law of the jurisdiction is indifferent as to error in one direction or the other. If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished. Compare Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d at 121 (finding summary judgment against plaintiff appropriate [**7] because, inter alia, New York courts placed only a minimal duty on the defendant to avert the type of harm incurred, which is “close to saying that if an error is to be made in this context, it is better made in favor of the defendant“) (emphasis added), with Williams v. KFC Nat. Mgmt. Co., 391 F.3d at 432 (finding summary judgment against plaintiff inappropriate because, inter alia, of “the absence of any reason to [*50] prefer erring in favor of [the defendant] rather than the plaintiff”).
B.
With these three factors in mind, we turn to the case before us. The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency. And plaintiff has failed to proffer expert testimony suggesting a stronger link. See Human Rights Comm’n v. LaBrie, Inc., 164 Vt. 237, 668 A.2d 659, 667 (Vt. 1995) (“Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well founded knowledge and can do no more than indulge in mere speculation.”) (internal quotation marks [**8] omitted).
The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.
We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?
A review of Vermont law suggests that it follows the approach of symmetrical indifference. [HN7] By statute, although assumption of risk has generally been subsumed in comparative [**9] negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently “obvious and necessary” as to be assumed generally forms a jury question under Vermont law. See Estate of Frant v. Haystack Grp., Inc., 162 Vt. 11, 641 A.2d 765, 770-71 (Vt. 1994) (rejecting the conclusion that “by enacting § 1037, the legislature intended to provide more protection from liability for ski areas” and stating that “§ 1037 is broad enough . . . [that s]kiers should be deemed to assume only those skiing risks that the skiing industry is not reasonably required to prevent,” as determined by “a jury [applying] a contemporary sense of what constitutes an obvious or necessary risk”). Vermont’s approach stands in notable contrast both to Connecticut, where participants in sporting events rarely assume the risk of that participation, see, e.g., Jagger v. Mohawk Mt. Ski Area, Inc., 269 Conn. 672, 849 A.2d 813, 827 (2004), and to New York, where assumption of risk is powerfully applied by courts to bar recovery by participants in sporting events, see, e.g., Martin v. New York, 64 A.D.3d 62, 878 N.Y.S.2d 823, 825-26 (App. Div. 3rd Dept. 2009); N.Y. Gen. Obl. Law § 18-106. This contrast reinforces [*51] our conclusion that Vermont [**10] wants us to treat errors in this area pretty much symmetrically.
Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.
III. CONCLUSION
The judgment of the District Court is, therefore, AFFIRMED.
G-YQ06K3L262
http://www.recreation-law.com
2015-2016 In bound ski/board fatalities
Posted: February 3, 2016 Filed under: Avalanche, Ski Area, Skiing / Snow Boarding | Tags: Bear Mountain, Bear Valley, Chair Lift, fatality, Jackson Hole, Mount Snow, Park City, ski area, skiing, Snoqualmie Pass, snowboarding, Steamboat, Tubing, Vail, Whiteface Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of January 15, 2016. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Red type is natural or medical conditions that occurred inbounds on the slopes
Green Type is Fatalities while sledding at the Resort
Blue Type is a Lift Accidents
2015 – 2016 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
11/29 |
CA |
Bear Mountain |
|
|
she collided with a metal stairway[i] |
|
Ski |
21 |
F |
Jackson Township, CA |
|
||
|
2 |
12/7 |
WY |
Jackson Hole |
Moran Run |
Blue |
Hit tree |
|
Board |
23 |
F |
Boston, MA |
Y |
||
|
3 |
12/15 |
CO |
Steamboat |
|
|
fell, landing face down in the snow |
|
Ski |
70 |
M |
Louisville, CO |
|
||
|
4 |
12/19 |
WA |
Snoqualmie Pass |
Silver Fir |
|
tree-well |
|
Ski |
50 |
M |
North Bend, WA |
|
||
|
5 |
12/22 |
WY |
Jackson Hole |
Sundance run |
|
found inverted in a tree well |
|
Ski |
25 |
F |
Jackson Hole, WY |
Y |
||
|
6 |
12/23 |
NY |
Whiteface Lake Placid |
Summit Express |
Blue |
fell and struck his head |
blunt impact to the head |
Board |
26 |
M |
Litiz, PA |
N |
|
|
|
7 |
12/23 |
CA |
Bear Valley |
|
|
|
|
Ski |
71 |
M |
|
|
||
|
8 |
1/6 |
CO |
Vail |
|
|
|
tree well |
Board |
25 |
M |
Avon, CO |
|
||
|
9 |
1/12 |
UT |
Park City |
|
Intermediate |
|
|
|
60 |
M |
|
|
|
|
|
10 |
1/24 |
VT |
Mount Snow |
|
|
|
|
Board |
56 |
M |
Simsbury, CT |
|
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.
You can download a PDF of this chart here: 2015 – 2016 Ski Season Deaths 1.15.16.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB,
Download a PDF of this chart here.
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB,
Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Snowboarding, Fatality, Ski Area, Tubing, Breckenridge, Chair Lift, Hunter Mountain, Jackson Hole, Pine Knob, Eldora, Keystone, Breckenridge, Eldora, Keystone, Pine Knob, Jackson Hole, Hunter Mtn, Mt. Hood Skibowl, Snowbird Ski Resort, Nashoba Valley Ski Area, Northstar California ski resort, Arizona Snowbowl, Copper Mtn, Keystone Resort, Stowe Mountain Resort, Mission Ridge Ski, Crested Butte, Breckenridge, Mr. Bachelor, White Pass Ski Area, Deer Valley Ski Resort, Steamboat Springs Ski Resort, Snoqualmie Pass, Mount Snow, Park City, Vail,
2015-2016 In bound ski/board fatalities
Posted: January 6, 2016 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Arizona Snowbowl, Breckenridge, Chair Lift, Copper Mtn, Crested Butte, Deer Valley Ski Resort, Eldora, fatality, Hunter Mountain, Hunter Mtn, Jackson Hole, Keystone, Keystone Resort, Mission Ridge Ski, Mr. Bachelor, Mt. Hood Skibowl, Nashoba Valley Ski Area, Northstar California ski resort, Pine Knob, ski area, skiing, Snoqualmie Pass, Snowbird Ski Resort, snowboarding, Steamboat Springs Ski Resort, Stowe Mountain Resort, Tubing, White Pass Ski Area Leave a commentThis list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of December 30, 2015. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Red type is natural or medical conditions that occurred inbounds on the slopes
Green Type is Fatalities while sledding at the Resort
Blue Type is a Lift Accidents
2015 – 2016 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
11/29 |
CA |
Bear Mountain |
|
|
she collided with a metal stairway[i] |
|
Ski |
21 |
F |
Jackson Township, CA |
|
||
|
2 |
12/7 |
WY |
Jackson Hole |
Moran Run |
Blue |
Hit tree |
|
Board |
23 |
F |
Boston, MA |
Y |
||
|
3 |
12/15 |
CO |
Steamboat |
|
|
fell, landing face down in the snow |
|
Ski |
70 |
M |
Louisville, CO |
|
||
|
|
12/19 |
WA |
Snoqualmie Pass |
Silver Fir |
|
tree-well |
|
Ski |
50 |
M |
North Bend, WA |
|
||
|
|
12/22 |
WY |
Jackson Hole |
Sundance run |
|
found inverted in a tree well |
|
Ski |
25 |
F |
Jackson Hole, WY |
Y |
||
|
|
12/23 |
NY |
Whiteface Lake Placid |
Summit Express |
Blue |
fell and struck his head |
blunt impact to the head |
Board |
26 |
M |
Litiz, PA |
N |
|
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.
If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Snowboarding, Fatality, Ski Area, Tubing, Breckenridge, Chair Lift, Hunter Mountain, Jackson Hole, Pine Knob, Eldora, Keystone, Breckenridge, Eldora, Keystone, Pine Knob, Jackson Hole, Hunter Mtn, Mt. Hood Skibowl, Snowbird Ski Resort, Nashoba Valley Ski Area, Northstar California ski resort, Arizona Snowbowl, Copper Mtn, Keystone Resort, Stowe Mountain Resort, Mission Ridge Ski, Crested Butte, Breckenridge, Mr. Bachelor, White Pass Ski Area, Deer Valley Ski Resort, Steamboat Springs Ski Resort, Snoqualmie Pass
[i] the staircase was at the end of a ski trail and led to a patio area.
New Wrinkle in the skiing out of bound’s odyssey. Douglas County Nevada law prohibits it, even though US Forest Service says it is not illegal.
Posted: December 30, 2015 Filed under: Ski Area | Tags: backcountry, Boundary, Heavenly, Heavenly Ski Area, Out of Bounds, Side Country, Ski Area Boundary Leave a commentMan skiing out of bounds, missing & SAR goes looking for him. When he shows up, he is issued a ticket for violating an out of bounds skiing law in Douglas County, Nevada.
A skier a Tahoe NV resident, ducked a rope at Heavenly Ski Resort and ski out of bounds. When he did not come back after two hours, and the resort had closed his friends called the sheriff’s office.
The Douglas County Sheriff’s office and Douglas County Search and Rescue (SAR) team started a search. Four hours later, the missing skier contacted the sheriff’s office and notified them he was OK.
Soon thereafter, the sheriff’s office met the individual and issued him a ticket for skiing out of bounds. Bail was $640.00.
Nevada has a Skier Responsibility Code, which specifically allows counties to enact their own codes if they do not conflict with the Nevada state skier responsibility code. Consequently, Douglas County has added to the responsibilities with its code, which affects Heavenly.
(How the civil requirements and prohibitions are applied from a criminal code is confusing.)
The main difference between the state statute and the county ordinance is the skiing out of bound’s section.
In this case, based on the facts from various articles, the skier probably should have been fined ducking a rope by himself and disappearing for four hours.
However, several other news stories reported the US Forest Service side of the story which says skiing on US Forest Service land is not illegal. See the article in the local paper, The Record Courier: Skiing out of bounds is not a crime. It is a fairly well written article.
The article states that three people needed rescued after exiting through ski area gates.
Every ski area concessionaire’s contract I’ve seen requires at least one gate allowing access from the ski area to US Forest Service land. Consequently, the ski area cannot say the person violated any of their rules about ducking a rope or going out of bounds because it is required.
At the same time, it is legal to be on US Forest Service land unless the US Forest Service closes the land. So far, the US Forest Service only closes land to certain types of vehicles or for the land to recover. No winter closures have ever occurred to my knowledge.
California does have a statute that allows law enforcement to close land based on Avalanche risk. However, the actual authority to close US Forest Service land vests only with the US Forest Service. Here is the California Statute:
§ 409.6. Power of peace officers to close area after avalanche; Unauthorized entry
So if you are not in California where the land was allegedly was closed, and you duck a rope to ski US Forest Service land can you be criminally charged? Yes. However, only if a specific set of facts have occurred, and this can probably never happen.
If the ski area boundary rope is on the boundary of the concessionaire’s permit with the US Forest Service then ducking the rope is not illegal. You can legally gain access to the US Forest Service land. However, the boundary rope must be on the US Forest Service land or right on the border.
However, ski areas do not place their boundary ropes on the US Forest Service land. The boundary ropes are always offset from the boundary. If you duck a rope and enter closed ski area land, then you have committed two crimes under most state statutes.
You have ducked a rope, and you have trespassed onto closed land.
More importantly don’t be an idiot. You ski or board out of bounds, that triggers a search for your butt; I hope they do find you and fine you. The hard-working VOLUNTEER men and women of county Search and Rescue units have enough idiots to find every year. Don’t add your name to their list.
See Tahoe man cited for skiing out of bounds
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Out of Bounds, Boundary, Ski Area Boundary, Backcountry, Side Country, Heavenly ski area, Heavenly,
Douglas County, Nevada, Skier Responsibility Code
Posted: December 27, 2015 Filed under: Nevada, Skiing / Snow Boarding | Tags: Douglas County, Douglas County Nevada, Nevada, Skier Responsibility Code 1 CommentDouglas County, Nevada Criminal Code 9.08 Skier Responsibility Code
Title 9 Criminal Code
9.08 Skier Responsibility Code
9.08.010 Definitions
9.08.020 Assumption of risks
9.08.030 Skier duties
9.08.040 Operator’s notice to skiers of duty
9.08.050 Skiers in competition
9.08.055 Prohibition against intoxication and use of controlled substances; penalty
9.08.060 Penalties for violations
9.08.010 Definitions
A. “The inherent risks of skiing”: Those dangers or conditions which are an integral part of the sport of skiing, snowboarding, snowshoeing, sledding, or any other winter sporting activities including, but not limited to, changing weather conditions, variation or steepness of terrain, snow or ice conditions, surface or subsurface conditions, whether man-modified or not, bare spots, creeks, gullies, rocks, forest growth or stumps, lift towers and other structures and their components, collision with other skiers and a skier’s failure to ski within the skier’s own ability.
B. “Injury”: Any personal injury or property damage or loss suffered by a skier, ski area operator or ski area.
C. “Skier”: Any person who is within the boundaries of a ski area for the purpose of engaging in the sport of skiing, alpine or Nordic, snowboarding, snowshoeing, sledding, or any other winter sporting activities where a person travels the slopes of a ski area with the aid of a device, or any person who is within the boundaries of the ski area for the purpose of observing any skiing activity.
D. “Ski area”: Any area designated and maintained by a ski area operator for the purpose of skiing, or for the observance of any skiing activity.
E. “Ski-area operator”: Any corporation, person, or their agent, officer, employee or representative, who operates a ski area within Douglas County. (Ord. 1102, 2005; Ord. 693, 1995; Ord. 410, 1983)
9.08.020 Assumption of risks
A. Any skier, or person who engages in the sport of skiing, snowboarding, snowshoeing, sledding, or any other winter sporting activities, or any person who is within the boundaries of a ski area for the purpose of observing any skiing activity, accepts and assumes the inherent risks of activity as they are reasonably obvious, expected or necessary.
B. Any skier or person who skis or snowboards in any area designated closed for skiing within the ski area assumes the inherent risks of the activity.
C. Any person who skis or snowboards outside of a ski area boundary assumes the inherent risks of the activity, and is responsible for all costs arising out of search and rescue efforts made on their behalf. (Ord. 1102, 2005; Ord. 410, 1983)
9.08.030 Skier duties
A. Skiers have the following duties:
1. Skiers are the sole judges of the limits of their skills and their abilities to meet and overcome the inherent risks of skiing, and must maintain control of their speed and course to avoid injury to persons or property.
2. Skiers must familiarize themselves with the posted information supplied by the ski-area operator on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail.
3. Skiers must not cross the uphill track of any surface lift except at points clearly designated by the ski area operator.
4. Skiers must not overtake any other skier except in a manner to avoid contact with the overtaken skier, and must grant the right-of-way to the overtaken skier.
5. Skiers must yield to other skiers when entering a trail or starting downhill.
6. Skiers must use retention straps or other devices to prevent runaway skis or snowboards.
7. Skiers must not board rope tows, wire rope tows, J-bars, T-bars, ski lifts or other similar devices unless they have sufficient ability to use the devices, and skiers must follow any written or verbal instructions that are given by the ski-area operator or representative regarding the use of the devices delineated in this section.
8. Skiers, when involved in a skiing collision with another skier which results in bodily injury to the other skier, must not depart from the ski area without first leaving their names and addresses with the ski patrol or ski-area operator of the ski area where the injury occurred, or its designated agent. Any skier that violates this subsection is guilty of a misdemeanor.
9. A skier who is bodily injured, if reasonably possible, must give notice of the injury to the ski-area operator before leaving the ski area.
10. Skiers must not embark or disembark from a ski lift except at designated areas, or by the authority of the ski-lift operator.
11. A skier, having used a ski lift or surface lift of a ski area, must no ski under a manmade barrier that is designed to prohibit a skier from entering a closed portion of the ski area or from leaving any part of the ski area. For the purpose of this section, a barrier may be designated by roping off an area. Any skier that violates this subsection is guilty of a misdemeanor.
B. Any violation of the duties delineated in this section creates a presumption that the person violating the duty intended all the foreseeable consequences of the violation.
C. A ski area operator may revoke the license or privilege of a person to ski or snowboard in a ski area who violates any of the provisions of this chapter. (Ord. 1102, 2005; Ord. 410, 1983)
9.08.040 Operator’s notice to skiers of duty
Ski-area operators must give notice to skiers of their duties as listed in section 9.18.030 in a manner reasonably calculated to inform skiers of those duties. (Ord. 1102, 2005; Ord. 410, 1983)
9.08.050 Skiers in competition
The ski area operator must, prior to the beginning of any skiing or snowboarding competition, allow each competitor a reasonable visual inspection of the course or area within which the competition is to be held. (Ord. 1102, 2005; Ord. 410, 1983)
9.08.055 Prohibition against intoxication and use of controlled substances; penalty
A. A skier must not ski, snowboard, or embark on a ski lift while intoxicated from alcohol or under the influence of a controlled substance as defined in chapter 453 of NRS, unless in accordance with a prescription issued to the person by a physician, podiatric physician or dentist.
B. A person who violates a provision of this section is guilty of a misdemeanor. (Ord. 1102, 2005; Ord. 693, 1995)
9.08.060 Penalties for violations
A. Misdemeanor. Any person convicted of violating the provisions of subsections 9.08.030(A) (8), 9.08.030(A) (11) is guilty of a misdemeanor.
B. Infraction. Any person convicted of violating the provisions of sections 9.08.030(A) (3), 9.08.030(A) (4), 9.08.030(A) (5), 9.08.030(A) (7), 9.08.030(A) (9) or 9.08.030(A) (10), is guilty of an infraction. (Ord. 1102, 2005; Ord. 693, 1995; Ord. 645, 1994; Ord. 410 §1, 1983)
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Douglas County, Nevada, Skier Responsibility Code, Douglas County Nevada,
Backcountry Magazine and G3 are giving away G3 gear, ‘Tis The Season For Backcountry Goodness
Posted: December 26, 2015 Filed under: Skiing / Snow Boarding | Tags: backcountry, Backcountry skiing, G3, Genuine Guide Gear, skiing, Telemark Leave a comment
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