O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74
Posted: October 7, 2013 Filed under: Legal Case, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Vermont | Tags: Collision, duty, Killington, Killington Ltd., Mary Ryan O'Connell, Ski Patrol, skier collision, skier v. skier, Vermont Leave a commentO’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74
Mary Ryan O’Connell v. Killington, Ltd.
No. 93-394
SUPREME COURT OF VERMONT
164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74
August 4, 1995, Filed
COUNSEL: Thomas M. French, Brattleboro, for plaintiff-appellee.
Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellant.
JUDGES: PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
OPINION BY: JOHN A. DOOLEY
OPINION
[*74] [**41] DOOLEY, J. Defendant ski area, Killington, Ltd., appeals from a negligence judgment against it based on defendant’s failure to identify an unknown skier with whom plaintiff, Mary Ryan O’Connell, collided while skiing. On appeal, defendant claims that it owed no duty to plaintiff to identify the other skier, that plaintiff’s claim is barred because the jury found that the accident resulted from an inherent risk of skiing, and that the court made errors in its charge to the jury. We reverse.
[*75] On January 12, 1990, plaintiff was skiing one of defendant’s most difficult trails. She stopped to rest at the edge of the trail and was struck by another skier who lost control on the ice at the center of the trail. One of [***2] defendant’s ski patrollers, along with plaintiff’s sister, arrived at the scene shortly after the collision. Plaintiff requested that they obtain the name of the other skier. While the ski patroller was occupied with evaluating and stabilizing plaintiff’s injury, plaintiff’s sister spoke to the other skier, and requested that he follow plaintiff to the patrol station and identify himself. The skier failed to arrive at the patrol station as requested, and has never been identified. Plaintiff’s injuries proved serious, and she and her husband filed suit against defendant in Rutland Superior Court, complaining that defendant negligently (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff’s injuries were the consequence of her assumption of the inherent risks of skiing.
The trial court denied defendant’s motion for directed verdict, both at the close of plaintiff’s case and at the close of the evidence. The court submitted the failure-to-warn and the failure-to-identify counts [***3] to the jury. In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant’s employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant’s negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.
Based on the instructions, the jury found for defendant on the failure-to-warn count and on the failure to close the trail because it found that the accident resulted from an inherent risk of the sport of skiing. It further found that defendant had negligently failed to obtain the identity of the other skier and that its negligence was the proximate cause of the loss of plaintiff’s “right to compensation” from that skier for her injuries. The jury awarded plaintiff $ 71,108.69 in damages, and the trial court denied defendant’s motions for judgment notwithstanding the verdict and for a new trial.
Defendant raises three issues on [***4] appeal: (1) whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided [*76] with her; (2) whether plaintiff’s failure-to-identify claim is precluded by the jury’s finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and (3) whether certain instructions to the jury were proper. We agree with defendant’s position on the first issue and, therefore, reverse. Because the case must be dismissed, we do not reach the second and third issues.
Defendant first claims that it owed plaintiff no duty to obtain the identity of the other skier, and that, accordingly, the trial court erred by instructing the jury that could find that defendant’s employee manual created such a duty. We agree.
In deciding this question, we first note that although the Vermont Legislature has passed a statute governing liability vis-a-vis the obtaining of names of skiers involved in a collision, see 12 V.S.A. § 1038(b)(2), this accident preceded the effective date of the statute so that it does not apply to this case. In any event, we conclude that the result in this case [**42] is the same under either the common law or the statute. 1 [***5]
1 [HN1] 12 V.S.A. § 1038(b), effective June 21, 1994, provides, in part:
(b) Collision at a ski area.
(1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.
(2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.
[HN2] Common-law negligence requires that there be a legal duty owed by defendant to plaintiff, breach of that duty, that such breach be the proximate cause of plaintiff’s harm, and that plaintiff have suffered actual loss or damage. See Langle v. Kurkul, 146 Vt. 513, 517, 510 A.2d 1301, 1304 (1986). Clearly, the first of these elements, duty, [***6] is central to a negligence claim, and its existence is primarily a question of law. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). The imposition of a duty is “‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.'” Id. (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)).
Plaintiff’s theory is that defendant had a duty to obtain the name of the skier who collided with her so plaintiff could sue that skier for her damages caused by the collision. Under plaintiff’s theory, this duty arises, first and foremost, because plaintiff’s injury occurred on [*77] defendant’s land, held open to the public for skiing. See Restatement (Second) of Torts § 314A(3) (1965).
In Langle, through the discussion of decisions from other states, we identified a number of factors to consider in determining whether a duty exits. See Langle, 146 Vt. at 519-20, 510 A.2d at 1304-05. [HN3] These factors may include the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and plaintiff’s injury, the moral blame [***7] attached to defendant’s conduct, the policy of preventing future harm, the burden to the defendant, the consequences to the community of finding a duty, and the availability and cost of insurance. Id. We think that an additional factor is more significant herd — that is, that plaintiff seeks a duty to prevent purely economic loss. Negligence law does not generally recognize a duty to exercise reasonable care to avoid intangible economic loss to another unless one’s conduct has inflicted some accompanying physical harm. See Prosser & Keeton, supra, § 92, at 657; Breslauer v. Fayston School Dist. Vt. , , 659 A.2d 1129, 1132 (1995). Thus, a possessor of land open to the general public has a duty to aid and protect a member of the public coming on the land against unreasonable risk of “physical harm” only. Restatement (Second) of Torts § 314A(1)(a), (3). Physical harm does not include economic loss. See Breslauer, Vt. at , 659 A.2d at 1132; Restatement (Second) of Torts § 7(3).
Our review of the decisions from other jurisdictions indicates that, [HN4] absent a special relationship or undertaking, there is no duty to protect [***8] another’s litigation interest. For example, there is no duty to preserve possible evidence for another party to assist that party in future litigation against a third party. See Edwards v. Louisville Ladder Co., 796 F. Supp. 966, 969 (W.D. La. 1992); Murphy v. Target Products, 580 N.E.2d 687, 689 (Ind. Ct. App. 1991); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177, 1179 (Kan. 1987). A municipal police force has no duty to investigate motor vehicle accidents to identify possible tortfeasors. See Jackson v. Heymann, 126 N.J. Super. 281, 314 A.2d 82, 85 (N.J. Super. Ct. Law Div. 1973); Caldwell v. City of Philadelphia, 358 Pa. Super. 406, 517 A.2d 1296, 1303 (Pa. Super. Ct. 1986). Similarly, a taxicab company owes no duty to an injured passenger to identify the operator of the vehicle which caused the accident and injured the passenger. See Stupka v. Peoples Cab Co., 437 Pa. 509, 264 A.2d 373, 374 (Pa. 1970). An exception to this rule may exist when there is some special relationship or duty arising from contract, statute or other special circumstance. See Bondu v. Gurvich, 473 So. 2d 1307, 1313 [**43] (Fla. Dist. Ct. App. 1984) [*78] (claim against defendant hospital for destruction of evidence permitted because hospital [***9] had statutory duty to maintain medical records); Koplin, 734 P.2d at 1179.
This general principle has been applied to circumstances identical to those present here. Two reported decisions have concluded that a ski area has no duty to obtain the identity of a negligent skier who collides with and injures the another skier. See Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159, 1164 (Idaho 1990); Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59-60 (Minn. Ct. App. 1989). Based on its prediction of our negligence law, the United States District Court for the District of Vermont determined that a ski area has no duty to identify the negligent skier. See Emil v. Sherburne Corp., No. 80-22, slip op. at 2-3 (D. Vt. July 8, 1980). We agree with that court that the landowner’s duty does not extend to “assisting the prosecution of claims arising from . . . torts” of third parties also using the land. Id. at 3.
We adopt the reasoning of the above decisions and conclude that no duty exists in these circumstances. Although our primary reason is the economic nature of the interest plaintiff asserts, other factors also point to the absence of a duty here. The main concern [***10] of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care. We are reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier. See Caldwell, 517 A.2d at 1301 (police duty at accident scene was to ensure victim’s physical well-being in expediting her trip to the hospital, not to protect the financial interests of the plaintiff).
Moreover, even if the ski area had a duty to identify, it would have only a limited ability to enforce that duty against an uncooperative skier. This suggests that any recognition of a duty should come from the Legislature, which can provide the ski area the means to discharge the duty. In fact, the Legislature has provided, as of 1994, that a skier involved in a collision has the responsibility “to provide his or her name and local and permanent address to the other parties to the collision,” but has also made clear that the ski area has no duty to obtain that identification. 12 V.S.A. § 1038(b).
Finally, we consider plaintiff’s argument that there is a special circumstance present [***11] in this case that creates a duty. Plaintiff relies primarily on defendant’s employee manual that establishes procedures [*79] in case of ski accidents. These procedures include completing an accident reporting form, obtaining names and addresses of witnesses to the accident, obtaining witness statements and recording observations at the accident scene. Plaintiff argues that these provisions amount to the voluntary assumption of a duty to investigate accidents, particularly skier collisions. See Restatement (Second) of Torts § 323 (one who gratuitously undertakes “to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability” for “physical harm” resulting from negligent performance of undertaking).
Although we agree that defendant could voluntarily assume the duty to investigate accidents on behalf of injured skiers, we do not believe that the manual provisions show the assumption of this responsibility. The manual makes clear that the investigatory responsibilities placed on employees are for the protection of defendant with respect to suits against it. There is nothing to indicate that they were assumed [***12] as duties to third parties.
This exact claim was made and rejected in Northcutt v. Sun Valley Co., 787 P.2d at 1164. The court held that imposing such requirements on employees did not create a duty to skiers to act on the skiers’ behalf. This holding is consistent with our decisions in similar circumstances. In Smith v. Day, 148 Vt. 595, 538 A.2d 157 (1987), engineers on a railway train sued Norwich University when a university student shot at the train and injured them. We concluded that, although defendant sought to control its students via the imposition of numerous rules and regulations, it did not assume a duty to third persons to control the volitional criminal [**44] acts of the students. Id. at 598, 538 A.2d at 159. More recently, in Larocque v. State Farm Ins. Co., Vt. , , 660 A.2d 286, 288 (1995), we concluded that a liability insurer’s employee manual, while directing employees to investigate claims in an efficient and cooperative manner, did not create any duty to a particular claimant to process the claim in good faith and consistent with the manual. Citing Smith, 148 Vt. at 598, 538 A.2d at 158-59, we stated that conducting [***13] one’s “business in a way that [is] responsive to third-party claimants does not create a legally enforceable duty to do so with respect to a particular claimant.” Id. To the extent defendant’s policy intended that its employees identify colliding skiers to aid in litigation between [*80] them, we believe that the rationale of Larocque is controlling and prevents use of defendant’s manual to create a negligence duty. 2
2 Plaintiff relies upon a Colorado trial court decision that denied a ski area summary judgment in a failure-to-identify case similar to that here. Burgener v. Keystone Arapahoe Ltd. Partnership, No. 90 CV 215, slip op. at 3 (Colo. Dist. Ct., Summit County Sept. 5, 1991). In that case, the plaintiff argued successfully that the defendant assumed the responsibility to investigate in certain publications and materials that were distributed to the public, including the plaintiff. These were read and relied upon by the plaintiff’s husband, who skied with her. This case has none of the public promotional and reliance elements of Burgener and is distinguishable on that basis.
[***14] In adopting this position, we are necessarily rejecting the suggestion that the jury could decide whether the manual creates a duty to investigate and identify the other skier. The trial court’s supplemental charge to the jury appears to have adopted this approach. As we indicated earlier, the existence of a duty is primarily a question of law. See Denis Bail Bonds, Inc., 159 Vt. at 487, 622 A.2d at 499. Although the proper meaning of the employee manual may have been a question of fact for the jury, if a duty were present under some construction of the manual, the threshold question of whether the manual, however construed, could give rise to a duty was for the court. See Smith v. Day, 148 Vt. at 598 n.3, 538 A.2d at 159 n.3.
Reversed.
FOR THE COURT: John A. Dooley, Associate Justice
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FIS Rules for skiing come with commentary to help interpret the rules
Posted: September 25, 2013 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Federation Internationale de Ski, FIS, International Ski Federation, Rules, ski area, skiing, snowboarding Leave a commentPiste means ski slope.
Have you ever heard of FISFederation Internationale de Ski or International Ski Federation? You probably have if you have watched any international, Olympic or World cup ski competition. FIS is the association that controls those events.
FIS is also an international ski body that does more than races. In most countries of Europe and others, FIS is the ski association.
FIS has created a set of rules for skiing similar, and in my opinion, better than the US your responsibility code.
The Ten FIS Rules can be found here.
FIS developed Ten Rules for Skiing:
1. Respect for others A skier or snowboarder must behave in such a way that he does not endanger or prejudice others.
2. Control of speed and skiing or snowboarding A skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather as well as to the density of traffic.
3. Choice of route A skier or snowboarder coming from behind must choose his route in such a way that he does not endanger skiers or snowboarders ahead.
4. Overtaking a skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement.
5. Entering, starting and moving upwards a skier or snowboarder entering a marked run, starting again after stopping or moving upwards on the slopes must look up and down the slopes that he can do so without endangering himself or others.
6. Stopping on the piste unless absolutely necessary, a skier or snowboarder must avoid stopping on the piste in narrow places or where visibility is restricted. After a fall in such a place, a skier or snowboarder must move clear of the piste as soon as possible.
7. Climbing and descending on foot a skier or snowboarder either climbing or descending on foot must keep to the side of the piste.
8. Respect for signs and markings
A skier or snowboarder must respect all signs and markings.
9. Assistance
At accidents, every skier or snowboarder is duty bound to assist.
10. Identification Every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.
Why do I like the FIS Ten Rules. For two major reasons, it proves that Your Responsibility Code is not THE world wide rules and because the rules make more sense.
People are constantly trying to put value on specific parts of Your Responsibility Code. Trying to prove that one part is more important than another. The FIS rules eliminate that priority argument because it is written in a better way, less on burden, more on working to improve skiing. The Ten FIS Rules are also broader, not just short sentences to be memorized.
The Rules also come with commentary to help further explain what they are supposed to impart.
General Comments on the FIS Rules
(Wording 2002)
Skiing and Snowboarding like all sports entail risks.
The FIS Rules must be considered an ideal pattern of conduct for a responsible and careful skier or snowboarder and their purpose is to avoid accidents on the piste.
The FIS Rules apply to all skiers and snowboarders. The skier or snowboarder is obliged to be familiar with and to respect them.
If he fails to do so, his behavior could expose him to civil and criminal liability in the event of an accident.
Rule 1 Skiers and snowboarders are responsible not only for their own behavior but also for their defective equipment. This also applies to those using newly developed equipment.
Rule 2 Collisions usually happen because skiers or snowboarders are moving too fast, out of control or have failed to see others. A skier or snowboarder must be able to stop, turn and move within the ambit of his own vision.
In crowded areas or in places where visibility is reduced, skiers and snowboarders must move slowly especially at the edge of a steep slope, at the bottom of a piste and within areas surrounding ski lifts.
Rule 3 Skiing and snowboarding are free activity sports, where everyone may move where and as they please, provided that they abide by these rules and adapt their skiing and snowboarding to their personal ability and to the prevailing conditions on the mountain.
The skier or snowboarder in front has priority. The skier or snowboarder moving behind another in the same direction must keep sufficient distance between himself and the other skier or snowboarder so as to leave the preceding skier or snowboarder enough space to make all his movements freely.
Rule 4 A skier or snowboarder who overtakes another is wholly responsible for completing that maneuver in such a way to cause no difficulty to the skier or snowboarder being overtaken. This responsibility rests with him until the overtaking maneuver has been completed. This rule applies even when overtaking a stationary skier or snowboarder.
Rule 5 Experience proves that joining a piste or starting again after stopping are the sources of accidents. It is absolutely essential that a skier or snowboarder finding himself in this situation enters the piste safely and without causing an obstruction or danger to himself or others.
When he has started skiing or snowboarding properly again – even slowly – he has the benefit of rule 3 as against faster skiers and snowboarders coming from above or behind.
The development of carving skis and snowboards allows their users to carve and turn upwards on the slopes. Hence they move opposite to the general downhill traffic. They must, therefore, make sure in time that they can do so without endangering themselves and others.
Rule 6 Except on wide pistes stops must be made at the side of the piste. One must not stop in narrow places or where it is difficult to be seen from above.
Rule 7 Moving against the general direction poses unexpected obstacles for the skiers and snowboarders.
Footprints damage the piste and can cause danger to skiers and snowboarders.
Rule 8 The degree of difficulty of a piste is indicated in black, red, blue or green. A skier or snowboarder is free to choose whichever piste he wants.
The pistes are also marked with other signs showing direction or giving warnings of danger or closure. A sign closing a piste, like one denoting danger, must be strictly observed. Skiers and snowboarders should be aware that warning signs are posted in their own interests.
Rule 9 It is a cardinal principle for all sportsmen that they should render assistance following an accident independent of any legal obligation to do so. Immediate First Aid should be given, the appropriate authorities alerted and the place of the accident marked to warn other skiers and snowboarders.
FIS hopes that a hit and run offence in skiing and snowboarding will incur a criminal conviction similar to hit and run offence on the road and that equivalent penalties will be imposed by all countries where such legislation is not already in force.
Rule 10 Witnesses are of great importance in establishing a full and proper report of an accident and therefore everybody must consider that it is the duty as a responsible person to provide information as a witness.
Reports of the rescue service and of the police as well as photographs are of considerable assistance in determining civil and criminal liability.
Take a look, you might find a lot of things you like as a skier, boarder or manager of a ski area.
What do you think? Leave a comment.
If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn
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By Recreation Law Rec-law@recreation-law.com James H. Moss Jim Moss
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Updates from the Mammut Barryvox Avalanche Beacon
Posted: September 24, 2013 Filed under: Avalanche, Ski Area, Skiing / Snow Boarding | Tags: avalanche, Avalanche Beacon, backcountry, Backcountry skiing, Barryvox, Barryvox Mammut, Mammut, skiing Leave a comment |
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Colorado Gems Card now Available with some added Features
Posted: September 12, 2013 Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: "sans-serif";color:black'>Colorado Ski Country USA, <span style='font-family:"Arial", Colorado, Gems, Ski, ski area, Snowboard Leave a commentSkiers and Riders Save on Lift Tickets and Explore Colorado’s Gem Resorts with New 2013/14 Colorado Ski Country USA Gems Card Program
Now On Sale, 2013/14 Season Gems Card Features Two-For-One Ticket Deals and Exclusive Promotions
Photo credit: Colorado Ski Country USA
Denver, Colo. – September 4, 2013 – Colorado Ski Country USA (CSCUSA) today unveiled the new 2013/14 Colorado Gems Card program and announced that cards are now available for purchase. For the 2013/14 season, the revised Gems Card program features two-for-one lift tickets at eight signature Colorado Gem ski resorts and exclusive Flash Deals promotions offered at Gem resorts throughout the season.
The new Gems Card program makes it easy to save on lift tickets. At any Gem resort, card holders can purchase one adult full day lift ticket and receive another adult full day lift ticket for free. Each Gems Card is good for one use per Gem resort, per season, and only a limited number of Gems Cards are available for sale.
In addition to the season-long, buy-one-get-one lift ticket deal, Gems Card holders also have exclusive access to Flash Deals. Flash Deals are special promotions and additional ways to save that are unique to each Gem resort and will be announced last minute throughout the season. CSCUSA will announce Flash Deals in the Gems newsletter, on social media, and on the Gems website www.ColoradoSki.com/gems. Only Colorado Gems Card holders will be able to take advantage of Flash Deals.
For savvy skiers and riders, the Colorado Gems Card is essential to enjoying the powder, terrain, and scenery that Colorado Ski Country has to offer. Available for $20, the 2013/14 Gems Card puts Colorado’s world-renowned skiing within reach for skiers and riders from Colorado and elsewhere. Card holders can take advantage of a day of two-for-one skiing at each of the eight participating resorts, redeeming the cost of the card after just one use.
By definition, a gem is a jewel; something prized especially for great beauty or perfection. There are eight Gems that add to the sparkle of Colorado’s crown of resorts and, in many ways, outshine their world famous neighbors. These Gems epitomize Colorado’s ski culture with their western authenticity, artisanal charm, and nostalgic skiing. Like diamonds in the rough, these resorts are strikingly beautiful, individually unique and not to be overlooked. The Colorado Gem resorts are: Arapahoe Basin, Eldora Mountain Resort, Loveland Ski Area, Monarch Mountain, Powderhorn Resort, Ski Cooper, Ski Granby Ranch, and Sunlight Mountain Resort.
For more information, or to purchase a Gems Card, visit www.ColoradoSki.com/Colorado-Gems-Card. Cards are available now and will be available throughout the upcoming ski season until they are sold out.
The Colorado Gems program is presented by Icelantic Boards; a Colorado based ski company that represents skis, art, adventure creativity, passion and innovation. More information on Icelantic can be found at www.IcelanticBoards.com
9.4.13 Skiers and Riders Save on Lift Tickets and Explore Colorado’s Gem Resorts.pdf
Osborn v. Cascade Mountain, Inc 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1
Posted: August 25, 2013 Filed under: Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Wisconsin Leave a commentOsborn v. Cascade Mountain, Inc 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1
2002 Wisc. App. LEXIS 1216,*;2003 WI App 1;
259 Wis. 2d 481;655 N.W.2d 546
Amanda Osborn, Joan Osborn, and Richard Osborn, Plaintiffs-Appellants, Unity Health Plans and Wisconsin Physicians Service Insurance Corp., Subrogated-Plaintiffs, v. Cascade Mountain, Inc. and American Home Assurance Company, Defendants-Respondents.
Appeal No. 01-3461
Court of Appeals of Wisconsin, District Four
2003 WI App 1;259 Wis. 2d 481;655 N.W.2d 546;2002 Wisc. App. LEXIS 1216
November 7, 2002, Decided
November 7, 2002, Filed
Notice: [*1] Pursuant to Wis. Stat. Rule 809.23(3) of appellate procedure, an unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority except to support a claim of Res Judicata, Collateral Estoppel or law of the case.
Prior History: Appeal from a judgment of the circuit court for Columbia County: James O. Miller, Judge. Cir. Ct. No. 99-CV-252.
Disposition: Affirmed.
Judges: Before Vergeront, P.J., Dykman and Deininger, JJ.
Opinion: P1. Per Curiam. Amanda Osborn and her parents, Joan and Richard Osborn, appeal from a summary judgment dismissing their personal injury action against Cascade Mountain, Inc., and its insurer. The Osborns sued for injuries Amanda, then age twelve, received while skiing at Cascade Mountain. The dispositive issue is whether the Osborns’ claim is subject to an enforceable release of liability agreement signed by Joan Osborn. We conclude that it is, and therefore affirm.
P2. The Osborns allege that a defective ski-boot-binding system, on ski equipment rented from Cascade Mountain, caused the injury to Amanda. However, before Amanda’s ski trip, Joan signed a document entitled “Rental Permission Agreement and Release of Liability.” That document provided:
I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the [*2] use of this ski equipment involve a risk of injury to any and all parts of my child’s body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.
I understand that the ski equipment being furnished forms a part of or all of a ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my child’s safety or freedom from injury while skiing. I further agree and understand that this ski-boot-binding system may reduce but does not eliminate the risk of injuries to the bottom one-third of my child’s lower leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my child’s knee or any other part of my child’s body.
I agree that I will release Cascade Mountain from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any other person. I agree NOT to make a claim against or sue Cascade Mountain for injuries or damages [*3] relating to skiing and/or the use of this equipment. I agree to release Cascade Mountain from any such responsibility, whether it results from the use of this equipment by the user, or whether it arises from any NEGLIGENCE or other liability arising out of the maintenance, selection, mounting or adjustment of this ski equipment.
…
I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between my child, myself and Cascade Mountain and I sign it of my own free will.
P3. Amanda fell twice while skiing. Amanda had signed a second release agreement similar to the one previously signed by her mother. The second fall caused her injuries.
P4. Cascade Mountain moved for summary judgment, alleging that the above-quoted release rendered it immune from liability. The trial court agreed and granted summary judgment. On appeal, the Osborns contend that the release is void on contract principles and public policy grounds. n1
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n1 It is recognized that a parent may waive a child’s claim, Fire Ins. Exch. v. Cincinnati Ins. Co., 2000 WI App 82, P24, 234 Wis. 2d 314, 610 N.W.2d 98, and the Osborns do not claim otherwise here.
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P5. An exculpatory contract may be void on public policy grounds or under rules governing contracts. See Werdehoff v. General Star Indem. Co., 229 Wis. 2d 489, 499-500, 600 N.W.2d 214 (Ct. App. 1999). In either case, the issue is one of law. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996). In deciding it, we owe no deference to the trial court. See M & I First Nat’l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995).
P6. In Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994), the supreme court applied a three-part public policy test to determine the validity of a liability release: first, whether it serves two purposes, neither clearly identified nor distinguished; second, whether it is extremely broad and all-inclusive; and third, whether it is a standardized form offering little or no opportunity for negotiation or free and voluntary bargaining. “None of these factors alone would necessarily invalidate the release; however, taken together they demand the conclusion that the contract is void as against public [*5] policy.” Id.
P7. In Yauger, the court applied a two-part test: first, examining whether the release clearly, unambiguously, and unmistakably informed the signer of what was waived; and second, whether the form in its entirety alerted the signer to the nature and significance of what was being signed. Yauger, 206 Wis. 2d at 84. Here, the Osborns contend that Cascade Mountain’s liability release must be deemed void under both the Richards and the Yauger tests.
P8. Cascade Mountain’s liability release is not void under the Richards test. The release’s two purposes are clearly and unmistakably identified in its title, “Rental Permission Agreement and Release of Liability.” That clear enunciation of purpose is not remotely confusing. Second, the release is not unduly broad or all-inclusive. It expressly and unmistakably restricts itself to those using its equipment: “I agree to release Cascade Mountain from [liability], whether it results from the use of this equipment by the user, or whether it arises from any NEGLIGENCE or other liability arising out of the maintenance, selection, mounting or adjustment [*6] of this ski equipment.” (Emphasis added.) Under any reasonable view, that language does not present an overly or unduly broad and all-inclusive release of liability. Third, it cannot be said that the agreement offered little or no opportunity for negotiation or free and voluntary bargaining. The release applied only to those who rented equipment from Cascade Mountain. Amanda, or any other skier, was permitted to ski at Cascade Mountain without signing the release if the person chose to obtain equipment elsewhere.
P9. The liability release is also enforceable under the Yauger test. The release clearly, unambiguously, and unmistakably informed the Osborns that they were agreeing not to pursue a claim against Cascade Mountain for injuries resulting from the use of rented Cascade Mountain ski equipment. Second, the title of the release, if nothing else, clearly informed the Osborns of what they were signing. In Yauger, the court held a liability release void in significant part because it was titled “APPLICATION.” See Yauger, 206 Wis. 2d at 86-87. The release here, unambiguously entitled a “Release of Liability,” removed that problem. Also [*7] in Yauger, only part of the release document actually dealt with the subject of liability. See id. 206 Wis. 2d at 79. Here, virtually every sentence of the release plainly and unmistakably addresses the issues of injury and liability for injury. Again, the facts are far removed from those that persuaded the court in Yauger to declare the release void. Additionally, although the Osborns argue otherwise, the reference to “Cascade Mountain” as the released party is not ambiguous. No one reading the release form could reasonably understand it as referring to anything other than Cascade Mountain, Inc.
P10. The Osborns also contend that the release Amanda signed was not valid because she was a minor. That is true, but irrelevant. The first release, signed by Joan, remained in effect.
By the Court.-Judgment affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5 (1999-2000).
New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Posted: July 22, 2013 Filed under: New Hampshire, Ski Area, Skiing / Snow Boarding, State | Tags: New Hampshire, New Hampshire Ski Area Safety Act, ski area, Ski Resort, Ski Safety Act, Skier, Snowboarder 2 CommentsNew Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
NEW HAMPSHIRE REVISED STATUTES ANNOTATED
TITLE XIX Public Recreation
CHAPTER 225-A Skiers, Ski Area and Passenger Tramway Safety
Go To New Hampshire Statutes Archive Directory
225-A:1 Declaration of Policy. 3
225-A:1-a Administratively Attached. 5
225-A:3 Passenger Tramway Safety Board. 8
225-A:3-a Passenger Tramway Safety Board. 8
225-A:9 Declaratory Judgment. 12
225-A:9-a Declaratory Judgment. 12
225-A:10-a Review of Plans and Specifications. 13
225-A:11 Operator to Pay Certain Costs. 13
225-A:12 Inspection Reports. 13
225-A:14 Registration Required. 14
225-A:15 Application for Registration. 15
225-A:18-a Emergency Shut-Down. 17
225-A:19-a Operation Forbidden. 19
225-A:23 Responsibilities of the Ski Area Operator. 21
225-A:24 Responsibilities of Skiers and Passengers. 24
225-A:25 Insurance; Limitations. 29
225-A:1 Declaration of Policy.
The state of New Hampshire finds that the sports of skiing, snowboarding, snow tubing, and snowshoeing are practiced by a large number of citizens of the state of New Hampshire, and also that skiing, snowboarding, snow tubing, and snowshoeing attract to the state of New Hampshire large numbers of nonresidents significantly contributing to the economy of New Hampshire. Therefore, it shall be the policy of the state of New Hampshire to protect its citizens and visitors from unnecessary mechanical hazards in the operation of ski tows, lifts, nordic ski jumps and passenger tramways, to ensure that proper design and construction are used, that board accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of ski tows, ski lifts, nordic ski jumps and passenger tramways. The primary responsibility for operation, construction, maintenance and inspection rests with the operators of such passenger tramway devices. The state, through its passenger tramway safety board, as hereinafter provided, shall register all ski lift devices and nordic ski jumps, establish reasonable standards of design and operational practices, and make such independent inspections as may be necessary in carrying out this policy. Further, 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 nordic ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.
225-A:1-a Administratively Attached.
The passenger tramway safety board shall be an administratively attached agency, under RSA 21-G:10, to the department of safety.
225-A:2 Definitions.
In this chapter:
“Board” means the passenger tramway safety board.
“Department” means the department of safety.
“Industry” means the activities of all those persons in the state who own or control the operation of ski areas.
“Nordic ski jump” means a facility constructed for the purpose of nordic ski jumping and built in accordance with appropriate standards and guidelines, and any facilities that are associated with the use or viewing of such a facility.
“Passenger” means any person, including skiers, while being transported or conveyed by a passenger tramway, or while waiting in the immediate vicinity for such transportation or conveyance, or while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the following passengers, or while in the act of boarding or embarking upon or disembarking from a passenger tramway.
“Passenger tramway” means a device used to transport passengers uphill on skis or other winter sports devices, 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. The term passenger tramway shall include the following:
Two-car aerial passenger tramway, a device used to transport passengers in 2 open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
Multi-car aerial passenger tramway, a device used to transport passengers in open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
“Conveyor” means a class of outdoor transportation wherein skiers or passengers are transported uphill on a flexible moving element such as a conveyor belt.
Chair lift, 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, or similar devices.
J bar, T bar or platter pull, so-called, and similar types of devices are 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.
Rope tow, a type of transportation which pulls the skier riding on skis as the skier grasps the rope manually, or similar devices.
Wire rope tow means a type of transportation by which skiers are pulled on skis while manually gripping a handle attached to a wire hauling cable. The hauling cable is maintained at a constant height range between the loading and unloading points, and there is only one span with no intermediate towers.
“Ski area operator” means a person who owns or controls the operation of a ski area. The word “operator” shall include the state or any political subdivision. An operator of a passenger tramway shall be deemed not to be operating a common carrier. Ski area operator is included in the term “operator” as used in this chapter.
“Ski areas” means all passenger tramways and all designated alpine and nordic trails, slopes, freestyle terrain, tubing terrain, and nordic ski jumps under the control of the alpine and nordic ski area operator and any other areas under the operator’s control open to the public for winter sports recreation or competition.
“Skier” means a person utilizing the ski area under the control of a ski area operator for ski, snowboard, and snow tube recreation and competition.
“Tubing terrain” means areas designated for sliding on inflatable tubes or other similar devices down a prepared course or lanes at a ski area.
“Winter sports” means the use of skis, snowboards, snow tubes, snowshoes, and any device being utilized by a disabled or adaptive participant for winter recreation or competition.
225-A:3 Passenger Tramway Safety Board.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:3-a Passenger Tramway Safety Board.
There shall be a passenger tramway safety board of 4 appointive members. The appointive members shall be appointed by the governor, with the advice and consent of the council, from persons representing the following interests: one member who operates a “surface lift” as described in RSA 225-A:2, I(e)-(g) only and one member from the cable and other passenger carrying devices industry, and in making such appointments consideration shall be given to recommendations made by members of the industry, so that both the devices which pull skiers riding on skis and the devices which transport passengers in cars or chairs shall have proper representation; one member to represent the public at large; and one member to represent insurance companies which engage in insuring passenger tramway operations, and in appointing such member consideration shall be given to recommendations made by such insurance companies. The authority of such board shall not extend to any other matter relative to the operation of a ski area.
225-A:4 Term of Office.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:4-a Term of Office.
Of the first appointments under this section one member shall be appointed for a term of one year, one for a term of 2 years, one for a term of 3 years and one for a term of 4 years, and until their successors are appointed and qualified, and thereafter each of the appointed members shall be appointed for a term of 4 years and until his successor is appointed and qualified. Vacancies in the board shall be filled for the unexpired term.
225-A:5 Removal.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:5-a Removal.
The appointive members of the board may only be removed from office as provided in RSA 4:1.
225-A:6 Compensation.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:6-a Compensation.
The appointive members of the board shall serve without compensation, but shall be reimbursed for their reasonable expenses incurred in official duties.
225-A:7 Records.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:7-a Records.
The department shall provide the board with such office and clerical assistance as may be necessary to carry on the work of the board, in accordance with RSA 225-A:1-a. The department shall also preserve the records, codes, inspection reports, and business records of the board.
225-A:8 Rulemaking.
The board with the approval of the commissioner of safety shall adopt, under RSA 541-A, rules after public hearing, relating to public safety in the construction, operation and maintenance of passenger tramways. The rules shall be in accordance with established standards, if any, and shall not be discriminatory in their application to operators of passenger tramways. The board shall also give notice of any public hearing under RSA 541-A for such rules by first class mail to each registered operator at least 14 days before the hearing.
225-A:9 Declaratory Judgment.
[Repealed 1987, 124:26, IV, eff. July 1, 1987.]
225-A:9-a Declaratory Judgment.
The validity or reasonableness of any rule adopted by the board may be judicially determined upon a petition to the superior court for declaratory judgment, brought within 30 days after the effective date of such rule. The court shall hear the petition and render a declaratory judgment only when it appears that the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair the legal rights and privileges of the petitioner. In rendering judgment the court shall give effect to any pertinent constitutional limitations upon the powers of the board, the limits of the authority and jurisdiction of the board as conferred under this chapter, and the procedural requirements of this chapter.
225-A:10 Inspections.
The department may make such inspection of the construction, operation and maintenance of passenger tramways as the board may reasonably require. The department may, at its own expense, employ other qualified engineers to make such inspections.
225-A:10-a Review of Plans and Specifications.
Prior to the construction of a new, or the alteration of an existing, passenger tramway, the operator or prospective operator shall submit plans and specifications to the department. The department may make recommendations relative to safety of the layout and equipment, but such recommendation shall not relieve the operator or prospective operator of his primary responsibility as set forth in RSA 225-A:1.
225-A:11 Operator to Pay Certain Costs.
[Repealed 1973, 52:5, eff. May 23, 1973.]
225-A:12 Inspection Reports.
If, as the result of an inspection, it is found that a violation of the board’s rules, regulations or code exists, or a condition in passenger tramway 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.
225-A:13 Complaints.
Any person may make written complaint to the board setting forth any thing or act claimed to be done or omitted to be done by any registered operator which is alleged to be in violation of any rule, regulation or code adopted by the board, or setting forth any condition in passenger tramway construction, operation or maintenance which is alleged to endanger the safety of the public. Thereupon the board shall cause a copy of said complaint to be forwarded to the registered operator complained of, which may be accompanied by an order requiring that the matters complained of be answered in writing within a time to be specified by the board. The board may investigate the matter complained of if it shall appear to the board that there are reasonable grounds therefor.
225-A:14 Registration Required.
No passenger tramway shall be operated in this state unless the operator thereof was registered by the board.
225-A:15 Application for Registration.
On or before November 1 of each year every operator of a passenger tramway shall apply to the board, on forms prepared by it, for registration hereunder. The application shall contain such information as the board may reasonably require.
225-A:16 Fees.
The application for registration shall be accompanied by the applicable annual fees to cover the costs of administering this chapter. The fees for registration shall be set by the board by rule adopted pursuant to RSA 541-A.
225-A:17 Registration.
The board, if satisfied with the facts stated in the application, shall issue a registration certificate to the operator. Each registration shall expire on October 31 next following the day of its issue.
225-A:18 Fees.
All fees collected by the board hereunder shall be credited to the special appropriation for the department to be expended for purposes of this chapter.
225-A:18-a Emergency Shut-Down.
When facts are presented to the board, or to any member thereof, tending to show that an unreasonable hazard exists in the continued operation of a tramway, the board or member, after such verification of said facts as is practical under the circumstances and consistent with the public safety, may, by an emergency order require the operator of said tramway forthwith to cease using the same for the transportation of passengers. Such emergency order shall be in writing and notice thereof may be served by any person upon the operator or his agent immediately in control of said tramway by a true and attested copy of such order, the return of such service to be shown by an affidavit on the back thereof. Such emergency order shall be effective for a period not to exceed 48 hours from the time of service. Immediately after the issuance of an emergency order hereunder, the board shall conduct an investigation into the facts of the case as contemplated in RSA 225-A:19, and shall take such action under said RSA 225-A:19 as may be appropriate.
225-A:19 Orders.
If, after investigation, the commissioner of safety or the board finds that a violation of any of the rules exists, or that there is a condition in passenger tramway construction, operation or maintenance endangering the safety of the public, either the commissioner of safety or the board shall forthwith issue a written order setting forth his or its findings, the corrective action to be taken, and fixing a reasonable time for compliance therewith. Such order shall be served upon the operator involved by registered mail, and shall become final, unless the operator shall apply to the board for a hearing in the manner hereinafter provided.
225-A:19-a Operation Forbidden.
If in any such case the commissioner of safety or the board is of the opinion that the public safety would be endangered by the use of the tramway for the transportation of passengers prior to the taking of some or all of such corrective action, he or it shall so state in said order, and shall require in said order that the tramway shall not be so used until specified corrective action shall have been taken. From and after receipt of the order by the operator said tramway shall not be used for the transportation of passengers without the approval of the commissioner of safety or the board. Application for a hearing before the board shall not have the effect of suspending said order. Operation of the tramway following receipt of such order may be enjoined by the superior court.
225-A:20 Hearing.
Any such operator, who is aggrieved by any such order, may, within 10 days after the service of such order upon him as hereinbefore provided, apply to the board for a review of such order. It shall be the duty of the board to hear the same at the earliest convenient day. At such hearing the operator shall have the right to be heard personally or by counsel, to cross-examine witnesses appearing against him, and to produce evidence in his own behalf. After such hearing, the board shall report its findings in writing to the commissioner of safety and make such order as the facts may require.
225-A:21 Appeal.
Any such operator, who is aggrieved by any such post-hearing order of the board, may, within 14 days after the entry thereof, appeal therefrom to the superior court. No such appeal shall suspend the operation of the order made by the board; provided that the superior court may suspend the order of the board pending the determination of such appeal whenever, in the opinion of the court, justice may require such suspension. The superior court shall hear such appeal at the earliest convenient day and shall make such decree as justice may require.
225-A:23 Responsibilities of the Ski Area Operator.
It shall be the responsibility of the operator to maintain the following signs and designations:
General Designations. The following color code is hereby established:
Green circle: On area’s easiest trails and slopes.
Black diamond: On area’s most difficult trails and slopes.
Blue square: On area’s trails and slopes that fall between the green circle and black diamond designation.
Yellow triangle with red exclamation point inside with a red band around the triangle: Extrahazardous.
Border around a black figure in the shape of a skier inside with a band running diagonally across the sign with the word “closed” beneath the emblem: Trail or slope closed.
Orange oval: On area’s designated freestyle terrain without respect to its degree of difficulty.
Base Area; Information to Skiers and Passengers. (a) A trail board shall be maintained at a prominent location listing the ski area’s network of ski trails, slopes, tubing terrain, and designated freestyle terrain in accordance with the aforementioned color code and containing a key to the code in accordance with the above designations; said trail board shall further designate which trails, slopes, and snow tube terrain are open or closed.
(b) The ski area operator shall warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.
(c) A map shall be available at all ski areas to all skiers and passengers indicating the system of ski trails, slopes, tubing terrain, and designated freestyle terrain in accordance with the color code in paragraph I.
Ski Trails and Slopes; Information and Warning to Skiers and Other Persons. (a) The operator shall mark the beginning of each alpine and nordic ski trail or slope with the appropriate symbol for that particular trail’s or slope’s degree of difficulty in accordance with RSA 225-A:23, I.
(b) The beginning of each alpine ski trail or slope is defined as the highest point of the trail or slope. Lower trail junctions and intersections may be marked with a degree of difficulty symbol.
(c) The operator shall mark the beginning of, and designated access points to, each alpine trail or slope that is closed with a sign in accordance with RSA 225-A:23, I(e). For purposes of this subparagraph, “designated access points” means the beginning of a trail, slope, or any point where an open trail crosses or intersects the closed trail as shown on the ski area’s trail board and trail map.
(d) The operator shall mark the beginning of and designated access points to terrain with the appropriate symbol in accordance with RSA 225-A:23, I(f), which sign shall warn the skier that the use of the terrain is at the skier’s own risk. Further, a sign shall be placed at each lift depicting the symbols in RSA 225-A:23, I(a)-(f) describing the trail or slope that the skier may encounter by utilizing such lift.
Nordic Ski Jumps. The operator shall provide a sign in a prominent location at or near the nordic ski jump facility, which sign shall warn the ski jumper that the use of the nordic ski jump is entirely at the ski jumper’s own risk. Further, the ski area operator shall be responsible for the design, construction, and structural maintenance of all nordic ski jumps.
225-A:24 Responsibilities of Skiers and Passengers.
It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing, snowboarding, snow tubing, and snowshoeing as sports, and the use of passenger tramways associated therewith may be hazardous to the skiers or passengers. Therefore:
Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing 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; terrain, lift towers, and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.
Each skier and passenger shall have the sole responsibility for knowing the range of his or her own ability to negotiate any slope, trail, terrain, or passenger tramway. Any passenger who boards such tramway shall be presumed to have sufficient knowledge, abilities, and physical dexterity to negotiate the lift, and no liability shall attach to any operator or attendant for failure to instruct persons on the use thereof.
Each skier or passenger shall conduct himself or herself, within the limits of his or her own ability, maintain control of his or her speed and course at all times both on the ground and in the air, while skiing, snowboarding, snow tubing, and snowshoeing heed all posted warnings, and refrain from acting in a manner which may cause or contribute to the injury of himself, herself, or others.
Each passenger shall be the sole judge of his ability to negotiate any uphill track, and no action shall be maintained against any operator by reason of the condition of said track unless the board, upon appropriate evidence furnished to it, makes a finding that the condition of the track, at the time and place of an accident, did not meet the board’s requirements, provided however, that the ski area operator shall have had notice, prior to the accident, of the board’s requirements the violation of which is claimed to be the basis for any action by the passenger.
No skier, passenger or other person shall:
Embark or disembark upon a passenger tramway except at designated areas.
Throw or drop any object while riding on a passenger tramway nor do any act or thing which shall interfere with the running of said tramway.
Engage in any type of conduct which will contribute to cause injury to any other person nor shall he willfully place any object in the uphill ski track which may cause another to fall, while riding in a passenger tramway.
Ski or otherwise use a slope or trail which has been designated “closed” by the operator without written permission of said operator or designee.
Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail board by the operator.
Cross the uphill track of a J bar, T bar, rope tow, wire rope, or similar device except at locations approved by the board.
Ski or otherwise access terrain outside open and designated ski trails and slopes or beyond ski area boundaries without written permission of said operator or designee.
225-A:25 Insurance; Limitations.
Unless an operator of a passenger tramway is in violation of this chapter or the rules of the board, which violation is causal of the injury complained of, no action shall lie against any operator by any passenger or his or her representative; this prohibition shall not, however, prevent the maintenance of an action against an operator for negligent operation, construction, or maintenance of the passenger tramway itself.
Except as limited by paragraph III, each operator of a passenger tramway shall maintain liability insurance with limits of not less than $300,000 per accident.
The requirements of paragraph II shall not apply to an operator of a passenger tramway which is not open to the general public and operated without charge to users. Nonprofit ski clubs, outing clubs, or other similar organizations, which are operators of rope or wire rope tows shall also be excepted from the requirements of paragraph II if the organization’s bylaws so provide, each member of the organization is provided with a copy of such bylaws, and use of the rope or wire rope tows operated by the organization is restricted to members of that organization. This paragraph shall not relieve the state or any political subdivision operating a rope or wire rope tow from the requirement of maintaining liability insurance in accordance with paragraph II.
No action shall be maintained against any operator for injuries to any skier or passenger unless the same is commenced within 2 years from the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by certified return receipt mail within 90 days of said injury. The venue of any action against an operator shall be in the county where the ski area is located and not otherwise.
No ski area operator shall be held responsible for ensuring the safety of, or for damages including injury or death resulting to, skiers or other persons who utilize the facilities of a ski area to access terrain outside open and designated ski trails. Ski areas shall not be liable for damages, including injury or death, to persons who venture beyond such open and designated ski trails.
A ski area operator owes no duty to anyone who trespasses on the ski area property.
225-A:26 Penalty.
Any person convicted of operating a passenger tramway without having been registered by the board, or violating this chapter or rules of the board shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person. Any operator who operates after his registration has been suspended by the board, shall be guilty of a violation for each day of illegal operation.
227:14 Reduced Rates.
All season passes, including those for different age groups or military service, established by the department for the specific use of the winter facilities at Cannon Mountain aerial tramway and ski area shall be made available to any resident of this state at a 25 percent discount. For the purposes of this section, “resident of this state” means a person whose domicile is in this state. To qualify for the discount, a resident shall provide proof of residency and purchase the pass prior to December 15 of the year in which the pass becomes effective. Proof of residency shall include a state issued driver’s license; a state issued I.D. card with a photograph or information including name, sex, date of birth, height, weight and color of eyes; a United States passport; an affidavit certifying residency from the municipal clerk of the purchasers’ town or city of residence; or, for a person less than 18 years of age, proof of a parent’s or guardian’s residency provided by the resident parent or guardian. The commissioner of the department of resources and economic development shall make quarterly reports on season passes issued under this section to the senate president, the speaker of the house of representatives, and the governor and council.
Nevada Skier Safety Act
Posted: July 22, 2013 Filed under: Nevada, Ski Area, Skiing / Snow Boarding | Tags: Law, Nevada, Nevada Skier Safety Act, Recreation and Sports, Ski, ski area, Ski Area Safety Act, Ski Resort, Skier, Snow, Snowboard, Snowboarder Leave a commentNevada Skier Safety Act
1.1 NEVADA REVISED STATUTES ANNOTATED
TITLE 40. Public Health And Safety.
CHAPTER 455A. Safety of Participants in Outdoor Sports.
Skiers and Snowboarders
GO TO NEVADA STATUTES ARCHIVE DIRECTORY
Nev. Rev. Stat. Ann. § 455A.023 (2012)
Table of Contents
455A.023. “Chair lift” defined. 3
455A.027. “Operator” defined. 3
455A.030. “Passenger” defined. 3
455A.083. “Snow recreation area” defined. 4
455A.085. “Snowboarder” defined. 5
455A.087. “Snowboarding” defined. 5
455A.090. “Surface lift” defined. 5
455A.110. Duties of skiers and snowboarders. 6
455A.130. Signs at chair lifts: Requirements; inspection. 7
455A.150. Illumination of signs at night. 8
455A.180. Revocation of license or privilege to engage in skiing or snowboarding. 10
455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter. 10
455A.010. Short title.
NRS 455A.010 to 455A.190, inclusive, may be cited as the Skier and Snowboarder Safety Act.
455A.020. Definitions.
As used in NRS 455A.010 to 455A.190, inclusive, unless the context otherwise requires, the words and terms defined in NRS 455A.023 to 455A.090, inclusive, have the meanings ascribed to them in those sections.
455A.023. “Chair lift” defined.
“Chair lift” means a device, except for an elevator, that carries, pulls or pushes a person along a level or inclined path to, from or within a snow recreation area by means of a rope, cable or other flexible element that is driven by an essentially stationary source of power.
455A.027. “Operator” defined.
“Operator” means a person, or a governmental agency or political subdivision of this State, who controls or operates an area where persons engage in skiing or snowboarding.
455A.030. “Passenger” defined.
“Passenger” means a person who utilizes a chair lift for transportation.
455A.035. “Patrol” defined.
“Patrol” means agents or employees of an operator who patrol the snow recreation area.
455A.040. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.083.
455A.050. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.023.
455A.060. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.035.
455A.070. “Skier” defined.
“Skier” means a person who engages in skiing in a snow recreation area.
455A.075. “Skiing” defined.
“Skiing” means the act of using skis to move across snow-covered ground.
455A.080. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.027.
455A.083. “Snow recreation area” defined.
“Snow recreation area” means the slopes, trails, runs and other areas under the control of an operator that are intended to be used for skiing, snowboarding or for the observation of the sports.
455A.085. “Snowboarder” defined.
“Snowboarder” means a person who engages in snowboarding in a snow recreation area.
455A.087. “Snowboarding” defined.
“Snowboarding” means the act of using a snowboard to move across snow-covered ground.
455A.090. “Surface lift” defined.
“Surface lift” means a chair lift designed for skiers or snowboarders to remain in contact with the ground or snowy surface during transportation.
455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited.
A skier or snowboarder shall not:
1. Embark upon a chair lift:
(a) When the skier or snowboarder knows that he or she has insufficient knowledge or physical ability to use the chair lift safely; or
(b) That is posted as closed or not in operation;
2. Purposefully embark upon or disembark from a chair lift except at an area designated for such a purpose or at the direction and under the direct supervision of an authorized agent or employee of an operator;
3. Toss, throw or cast or intentionally drop, expel or eject an object from a chair lift;
4. Toss, throw or cast an object in the direction of a chair lift;
5. Fail or refuse to comply with:
(a) Reasonable instructions given to the skier or snowboarder by an authorized agent or employee of an operator regarding the use of a chair lift; or
(b) A sign posted pursuant to NRS 455A.130 or 455A.140;
6. Place any object in the uphill path of a surface lift;
7. Conduct himself or herself in a manner that interferes with the safe operation of a chair lift or with the safety of a passenger, skier or snowboarder; or
8. Engage in skiing or snowboarding in an area within the snow recreation area which is posted, as provided in NRS 207.200, as closed.
455A.110. Duties of skiers and snowboarders.
A skier or snowboarder shall, to the extent that the matter is within his or her control:
1. Locate and ascertain the meaning of signs in the vicinity of the skier or snowboarder posted pursuant to NRS 455A.130 and 455A.140;
2. Heed warnings and other information posted by an operator;
3. Remain a safe distance from vehicles, signs and equipment for grooming snow or for transportation;
4. Avoid skiers or snowboarders in motion when entering a slope, run or trail, and when commencing to engage in skiing or snowboarding from a stationary position;
5. Maintain a proper lookout and control of his or her speed to avoid downhill objects, skiers and snowboarders to the best of his or her ability; and
6. Conduct himself or herself in such a manner as to avoid injury to persons and property in a snow recreation area.
455A.120. Prohibited acts.
A skier or snowboarder shall not:
1. Use a ski or snowboard unless it is attached to the skier or snowboarder by a strap or equipped with a device capable of stopping the movement of the ski or snowboard when not attached to the skier or snowboarder;
2. Cross the uphill path of a surface lift except at locations designated by an operator; or
3. Willfully stop where the skier or snowboarder obstructs a slope, run or trail, or where he or she is not safely visible to uphill skiers or snowboarders.
455A.130. Signs at chair lifts: Requirements; inspection.
1. An operator shall prominently post and maintain signs in simple and concise language:
(a) By each chair lift, with information for the protection and instruction of passengers; and
(b) At or near the points where passengers are loaded on a chair lift, directing persons who are not familiar with the operation of the chair lift to ask an authorized agent or employee of the operator for assistance and instruction.
2. An operator shall prominently post and maintain signs with the following inscriptions at all chair lifts in the locations indicated:
(a) “Remove pole straps from wrists” at an area for loading skiers;
(b) “Safety gate” where applicable;
(c) “Stay on tracks” where applicable;
(d) “Keep ski tips or snowboard up” ahead of any point where a ski or snowboard can regain contact with the ground or snowy surface after a passenger departs from an area for loading skiers or snowboarders;
(e) “Prepare to unload” and “check for loose clothing and equipment” not less than 50 feet from an area for unloading skiers or snowboarders; and
(f) “Unload here” at an area for unloading skiers or snowboarders.
3. An operator shall inspect a snow recreation area for the presence and visibility of the signs required to be posted by this section each day before opening the snow recreation area for business.
455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light.
1. An operator shall post and maintain a system of signs:
(a) At the entrances to an established slope, run or trail to indicate:
(1) Whether any portion of the slope, run or trail is closed; and
(2) The relative degree of difficulty of the slope, run or trail;
(b) To indicate the boundary of the snow recreation area, except in heavily wooded areas or other terrain that cannot be skied or snowboarded readily; and
(c) To warn of each area within the boundary of the snow recreation area where there is a danger of avalanche by posting signs stating “Warning: Avalanche Danger Area.”
2. An operator shall equip vehicles it uses on or in the vicinity of a slope, run or trail with a light visible to skiers or snowboarders when the vehicle is in motion.
455A.150. Illumination of signs at night.
A sign required to be posted pursuant to NRS 455A.130; and 455A.140 must be adequately illuminated at night, if the snow recreation area is open to the public at night, and be readable and recognizable under ordinary conditions of visibility.
455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers.
1. A skier or snowboarder who sustains a personal injury shall notify the operator or a member of the patrol of the injury as soon as reasonably possible after discovery of the injury.
2. An operator is not liable for the death or injury of a person or damages to property caused or sustained by a skier or snowboarder who knowingly enters an area which is not designated for skiing or snowboarding or which is outside the boundary of a snow recreation area.
3. An operator shall take reasonable steps to minimize dangers and conditions within the operator’s control.
455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty.
1. A skier or snowboarder shall not engage in skiing or snowboarding, or embark on a chair lift that is proceeding predominantly uphill, while intoxicated or under the influence of a controlled substance as defined in chapter 453 of NRS unless in accordance with a lawfully issued prescription.
2. A skier or snowboarder who is involved in a collision in which another person is injured shall provide his or her name and current address to the injured person, the operator or a member of the patrol:
(a) Before the skier or snowboarder leaves the vicinity of the collision; or
(b) As soon as reasonably possible after leaving the vicinity of the collision to secure aid for the injured person.
3. A person who violates a provision of this section is guilty of a misdemeanor.
455A.180. Revocation of license or privilege to engage in skiing or snowboarding.
An operator may revoke the license or privilege of a person to engage in skiing or snowboarding in a snow recreation area if the person violates any provision of NRS 455A.100, 455A.110, 455A.120 or 455A.170.
455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter.
The provisions of NRS 455A.010 to 455A.190, inclusive, do not prohibit a county, city or unincorporated town from enacting an ordinance, not in conflict with the provisions of NRS 455A.010 to 455A.190, inclusive, regulating skiers, snowboarders or operators.
Michigan Ski Safety Act
Posted: July 22, 2013 Filed under: Michigan, Ski Area, Skiing / Snow Boarding | Tags: Michigan, Michigan Ski Safety Act, Ski, ski area, Ski lift, Ski Resort, Skier, Skier Safety Act, Snowboarder Leave a commentMichigan Ski Safety Act
MICHIGAN COMPILED LAWS SERVICE
CHAPTER 408 LABOR
SKI AREA SAFETY ACT OF 1962
Go to the Michigan Code Archive Directory
MCLS prec § 408.321 (2012)
MCL § 408.321
Table of Contents
§ 408.321. Ski area safety act of 1962; short title. 2
§ 408.323. Ski area safety board; creation; composition; qualifications; ex officio members. 5
§ 408.324. Ski area safety board; appointment and terms of members; vacancies. 5
§ 408.326. Rules; proposed legislation establishing fee schedule. 6
§ 408.326a. Duties of ski area operator. 6
§ 408.327. Promulgation of rules. 8
§ 408.328. Commissioner of labor; administration of act. 8
§ 408.329. Ski lifts; permits requirement, inspection. 8
§ 408.330. Ski lifts; temporary permits. 9
§ 408.331. Ski lifts; permits, issuance, expiration. 9
§ 408.332. Ski lifts; erection, alteration, moving, plans and specifications; rope tows. 9
§ 408.333. Ski lifts; order to cease operation. 10
§ 408.334. Ski lifts; existing installations. 10
§ 408.335. Ski lifts; rules and regulations, modification for hardship, record. 10
§ 408.336. Ski lifts; fees. 10
§ 408.337. Chief inspector; inspection service. 11
§ 408.338. Revenue; disbursements. 11
§ 408.339. Notice of public hearing. 12
§ 408.340. Violations; penalties; rules. 12
§ 408.341. Skier conduct; prohibited conduct in ski area. 13
§ 408.342. Duties of skier in ski area; acceptance of dangers. 13
§ 408.343. Accidents causing injury; notice; identification; misdemeanor; penalty. 16
§ 408.344. Violation of act; liability. 17
Preceding § 408.321
An act to provide for the inspection, licensing, and regulation of ski areas and ski lifts; to provide for the safety of skiers, spectators, and the public using ski areas; to provide for certain presumptions relative to liability for an injury or damage sustained by skiers; to prescribe the duties of skiers and ski area operators; to create a ski area safety board; to provide for the disposition of revenues; to provide for liability for damages which result from a violation of this act; to provide civil fines for certain violations of this act; and to provide criminal penalties for certain violations of this act. (Amended by Pub Acts 1981, No. 86, imd eff July 2, 1981; 1995, No. 120, imd eff June 30, 1995.)
§ 408.321. Ski area safety act of 1962; short title.
Sec. 1. This act shall be known and may be cited as the “ski area safety act of 1962”.
§ 408.322. Definitions.
Sec. 2. As used in this act:
(a) “Board” means the ski area safety board.
(b) “Commissioner” means the director of commerce or an authorized representative of the director.
(c) “Department” means the state department of commerce.
(d) “Operator” means a person who owns or controls, or who has operational responsibility for, a ski area or ski lift. An operator includes this state or a political subdivision of this state.
(e) “Passenger” means a person, skier or nonskier, who boards, disembarks from, or is transported by a ski lift, regardless of whether the ski lift is being used during the skiing season or nonskiing season, and includes a person waiting for or moving away from the loading or unloading point of a ski lift.
(f) “Ski area” means an area used for skiing and served by 1 or more ski lifts.
(g) “Skier” means a person wearing skis or utilizing a device that attaches to at least 1 foot or the lower torso for the purpose of sliding on a slope. The device slides on the snow or other surface of a slope and is capable of being maneuvered and controlled by the person using the device. Skier includes a person not wearing skis or a skiing device while the person is in a ski area for the purpose of skiing.
(h) “Ski lift” means a device for transporting persons uphill on skis, or in cars on tracks, or suspended in the air by the use of cables, chains, belts, or ropes, and usually supported by trestles or towers with 1 or more spans. Ski lift includes a rope tow.
§ 408.323. Ski area safety board; creation; composition; qualifications; ex officio members.
Sec. 3. A ski area safety board consisting of 7 members is created within the office of the commissioner. The board consists of 3 ski area managers, 1 from the Upper Peninsula and 2 from the Lower Peninsula; 1 engineer with skiing experience; 1 member of the central United States ski association, a nonprofit corporation; 1 person with skiing experience from the Upper Peninsula representing the general public; and 1 with skiing experience from the Lower Peninsula representing the general public. The commissioner and an officer of the Michigan tourist council are ex officio members of the board without vote.
§ 408.324. Ski area safety board; appointment and terms of members; vacancies.
Sec. 4. Members of the board shall be appointed by the governor with the advice and consent of the senate for terms of 4 years and until their successors are appointed and qualified. Vacancies in the board shall be filled for the unexpired term.
§ 408.325. Ski area safety board; conducting business at public meeting; notice; election of chairperson and other officers; quorum; meetings; compensation and expenses.
Sec. 5. (1) The business which the board may perform shall be conducted at a public meeting of the board held in compliance with Act No. 267 of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan Compiled Laws. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976. The board shall elect a chairperson and other officers it considers necessary to perform its duties between meetings. A majority of the 7 voting members shall constitute a quorum. The board shall meet not less than once yearly on the call of the chairperson or by written request of not less than 3 members.
(2) The per diem compensation of the members of the board, other than the commissioner, and the schedule for reimbursement of expenses shall be established annually by the legislature.
§ 408.326. Rules; proposed legislation establishing fee schedule.
Sec. 6. (1) The board shall promulgate rules for the safe construction, installation, repair, use, operation, maintenance, and inspection of all ski areas and ski lifts as the board finds necessary for protection of the general public while using ski areas and ski lifts. The rules shall be reasonable and based upon generally accepted engineering standards, formulas, and practices.
(2) The board, with the advice of the commissioner, shall propose legislation to establish the fee schedule for permits, inspections, and plan review activities. The fees shall reflect the actual costs and expenses of the department for issuing permits and conducting inspections and plan reviews.
§ 408.326a. Duties of ski area operator.
Sec. 6a. Each ski area operator shall, with respect to operation of a ski area, do all of the following:
(a) Equip each snow-grooming vehicle and any other authorized vehicle, except a snowmobile, with a flashing or rotating yellow light conspicuously located on the vehicle, and operate the flashing or rotating yellow light while the vehicle is moving on, or in the vicinity of, a ski run. A snowmobile operated in a ski area shall be operated with at least 1 operating white light located on the front of the snowmobile.
(b) Mark with a visible sign or other warning device the location of any hydrant or similar fixture or equipment used in snow-making operations located on a ski run, as prescribed by rules promulgated under section 20(3).
(c) Mark the top of or entrance to each ski run, slope, and trail to be used by skiers for the purpose of skiing, with an appropriate symbol indicating the relative degree of difficulty of the run, slope, or trail, using a symbols code prescribed by rules promulgated under section 20(3).
(d) Mark the top of or entrance to each ski run, slope, and trail which is closed to skiing, with an appropriate symbol indicating that the run, slope, or trail is closed, as prescribed by rules promulgated under section 20(3).
(e) Maintain 1 or more trail boards at prominent locations in each ski area displaying that area’s network of ski runs, slopes, and trails and the relative degree of difficulty of each ski run, slope, and trail, using the symbols code required under subdivision (c) and containing a key to that code, and indicating which runs, slopes, and trails are open or closed to skiing.
(f) Place or cause to be placed, if snow-grooming or snow-making operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.
(g) Post the duties of skiers and passengers as prescribed in sections 21 and 22 and the duties, obligations, and liabilities of operators as prescribed in this section in and around the ski area in conspicuous places open to the public.
(h) Maintain the stability and legibility of all required signs, symbols, and posted notices.
§ 408.327. Promulgation of rules.
Sec. 7. The rules shall be promulgated pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws.
§ 408.328. Commissioner of labor; administration of act.
Sec. 8. The commissioner, subject to the limitations herein contained and the rules and regulations of the board, shall administer and enforce the provisions of this act.
§ 408.329. Ski lifts; permits requirement, inspection.
Sec. 9. No person shall operate a ski lift without a permit issued by the commissioner. On or before October 1 of each year an operator shall apply for a permit to the commissioner on a form furnished by the commissioner and containing such information as the board may require. All ski lifts shall be inspected before they are originally put into operation for the public’s use and thereafter at least once every 12 months, unless permitted to operate on a temporary permit.
§ 408.330. Ski lifts; temporary permits.
Sec. 10. The commissioner may issue a temporary permit for 30 calendar days to an operator, who has previously been operating in this state on a regular or annual basis, to continue operation. An inspection of his ski lifts shall be made within 30 days from the issuance of the permit. A ski lift inspected and covered by a permit in the preceding year may operate on a temporary basis until further inspected.
§ 408.331. Ski lifts; permits, issuance, expiration.
Sec. 11. If upon inspection a ski lift is found to comply with the rules and regulations of the board, the commissioner shall issue a permit to operate. A permit shall expire on September 30 of the following year.
§ 408.332. Ski lifts; erection, alteration, moving, plans and specifications; rope tows.
Sec. 12. Before a new ski lift is erected, or before a presently existing ski lift is moved to a different location, or whenever any additions or alterations are made which change the structure, mechanism, classification or capacity of any ski lift, the operator shall file with the department detailed, duplicate plans and specifications of such work. The plans and specifications shall be prepared by a qualified tramway firm or by an engineer, licensed in this state as a professional engineer, in accordance with Act No. 240 of the Public Acts of 1937, as amended, being sections 338.551 to 338.576 of the Compiled Laws of 1948. Upon approval of plans and specifications, the department shall issue a permit for such work. All rope tows shall be excluded from this section.
§ 408.333. Ski lifts; order to cease operation.
Sec. 13. The commissioner or board may order, in writing, a temporary cessation of operation of a ski lift if it has been determined after inspection to be hazardous or unsafe. Operation shall not resume until such conditions are corrected to the satisfaction of the commissioner or board.
§ 408.334. Ski lifts; existing installations.
Sec. 14. This act shall not be construed to prevent the use of any existing installation, upon inspection found to be in a safe condition and to conform with the rules and regulations of the board.
§ 408.335. Ski lifts; rules and regulations, modification for hardship, record.
Sec. 15. If there are practical difficulties or unnecessary hardships for an operator to comply with the rules and regulations under this act, the commissioner, with the approval of the board, may modify the application of such rules or regulations to such a situation, if the spirit of the provisions shall be observed and the public safety is secured. Any operator may make a written request to the board stating his grounds and applying for such modification. Any authorization by the commissioner and the board shall be in writing and shall describe the conditions under which the modification is permitted. A record of all modifications shall be kept in the department and open to the public.
§ 408.336. Ski lifts; fees.
Sec. 16. (a) An application for a permit shall be accompanied by fees of:
$25.00 for an annual permit; or
$2.00 for each rope tow,
$5.00 for each T bar, J bar or platter pull,
$15.00 for each chair lift or skimobile, and
$30.00 for each aerial tramway,
if greater than the $25.00 annual permit fee.
(b) Inspection fees shall be as follows:
$8.00 for each rope tow,
$20.00 for each T bar, J bar or platter pull,
$60.00 for each chair lift or skimobile,
$120.00 for each aerial tramway, and
$50.00 for reinspections or special inspections at an operator’s request.
Any operator may employ any person, partnership or corporation, approved by the commissioner and board, to make the inspections. Inspections made by any person, partnership, or corporation, that may be employed by an operator, shall be on forms furnished or approved by the department. Inspection fees shall be waived when the annual permit application is accompanied by such an inspection report.
(c) Fees for review and approval of plans prior to construction shall be $200.00 for a chair lift, T bar, J bar, platter pull or tramway.
Fees for review and approval of plans for modification and alteration of an existing lift shall be $50.00.
(d) Fees shall be paid to the department, which shall give receipts therefor.
§ 408.337. Chief inspector; inspection service.
Sec. 17. The department, with the advice and consent of the board, shall employ or retain a person qualified in engineering and training who shall be designated chief inspector. The chief inspector and such additional inspectors and other employees as may be necessary to properly administer this act may be hired on a temporary basis or borrowed from other state departments, or the department may contract with persons, partnerships or corporations for such inspection services on an independent basis.
§ 408.338. Revenue; disbursements.
Sec. 18. All fees for permits or inspections, or any other income received under this act, shall be paid into the general fund. All salaries and other moneys expended under this act shall be paid by the state treasurer from a fund appropriated by the legislature.
§ 408.339. Notice of public hearing.
Sec. 19. (1) In addition to the notice prescribed in section 5(1) notice of a public hearing held under this act shall be published not less than once and not less than 10 days before the hearing, in newspapers of general circulation prescribed by the commissioner.
§ 408.340. Violations; penalties; rules.
Sec. 20. (1) Except for sections 21 to 24, and except as provided in subsection (2), a person who violates this act, or a rule or order promulgated or issued pursuant to this act, or a person who interferes with, impedes, or obstructs the commissioner, an authorized representative of the commissioner, or a board member in the performance of duties prescribed by this act, is guilty of a misdemeanor. Each day a violation or other act continues shall be considered a separate offense.
(2) A member of the board who intentionally violates section 5(1) shall be subject to the penalties prescribed in Act No. 267 of the Public Acts of 1976, as amended.
(3) Not more than 270 days after the effective date of this subsection, the board shall, pursuant to section 7, promulgate rules consistent with this act to implement this act, except for subsection (2) and sections 21, 22, 23, and 24, not to exceed $50.00 for each violation.
§ 408.341. Skier conduct; prohibited conduct in ski area.
Sec. 21. (1) A skier shall conduct himself or herself within the limits of his or her individual ability and shall not act or ski in a manner that may contribute to his or her injury or to the injury of any other person. A skier shall be the sole judge of his or her ability to negotiate a track, trail, or slope.
(2) While in a ski area, a skier or passenger shall not do any of the following:
(a) Board a ski lift which has been designated as closed.
(b) Wilfully board or embark upon, or disembark from, a ski lift, except at an area designated for those purposes.
(c) Intentionally drop, throw, or expel an object from a ski lift while riding on the lift.
(d) Do any act which interferes with the running or operation of a ski lift, such as, but not limited to: swinging or bouncing on an aerial lift, attempting to contact supporting towers, machinery, guides, or guards while riding on a ski lift; or skiing out of the designated ski track on a surface lift or tow.
(e) Use a ski lift, unless the skier or passenger has the ability to use the lift safely without instruction on use of the lift by a ski area owner, manager, operator, or employee, or unless the skier or passenger requests and receives instruction before entering the boarding area of the ski lift.
(f) Use a ski lift or ski without properly engaging and using ski restraining devices, brakes, or restraining straps.
§ 408.342. Duties of skier in ski area; acceptance of dangers.
Sec. 22. (1) While in a ski area, each skier shall do all of the following:
(a) Maintain reasonable control of his or her speed and course at all times.
(b) Stay clear of snow-grooming vehicles and equipment in the ski area.
(c) Heed all posted signs and warnings.
(d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e).
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
§ 408.343. Accidents causing injury; notice; identification; misdemeanor; penalty.
Sec. 23. (1) A skier involved in an accident causing an injury to another person shall to the extent that he or she is reasonably able to do so immediately notify the ski patrol or the operator, or law enforcement or emergency personnel, and shall clearly identify himself or herself. A skier who wilfully fails to give identification after involvement in a skiing accident with another person, or a skier who is reasonably able to do so who fails to notify the proper authorities or to obtain assistance when the skier knows that another person involved in the accident is in need of medical or other assistance, is guilty of a misdemeanor, punishable by imprisonment for not more than 30 days, or a fine of not more than $100.00, or both.
(2) A skier involved in an accident causing an injury to himself or herself, but not to another person, shall immediately notify the ski patrol or the operator, or law enforcement or emergency personnel, if the accident created a known hazardous condition in the area where the accident occurred.
§ 408.344. Violation of act; liability.
Sec. 24. A skier or passenger who violates this act, or an operator who violates this act shall be liable for that portion of the loss or damage resulting from that violation.
Maine Ski Area Safety Act
Posted: July 22, 2013 Filed under: Maine, Ski Area, Skiing / Snow Boarding | Tags: MAINE, Maine Ski Area Safety Act, ski area, Ski Safety Act, Skier Snowboarder Leave a commentMaine Ski Area Safety Act
TITLE 14. COURT PROCEDURE–CIVIL
PART 2. PROCEEDINGS BEFORE TRIAL
CHAPTER 205. LIMITATION OF ACTIONS
SUBCHAPTER 1. GENERAL PROVISIONS
GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY
14 M.R.S. § 752-B (2012)
§ 752-B. Ski areas
All civil actions for property damage, bodily injury or death against a ski area owner or operator or tramway owner or operator or its employees, as defined under Title 32, chapter 133, whether based on tort or breach of contract or otherwise, arising out of participation in skiing or hang gliding or the use of a tramway associated with skiing or hang gliding must be commenced within 2 years after the cause of action accrues.
TITLE 32. PROFESSIONS AND OCCUPATIONS
CHAPTER 133. BOARD OF ELEVATOR AND TRAMWAY SAFETY
GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY
§ 15201. Declaration of policy
It is the policy of the State to protect its citizens and visitors from unnecessary mechanical hazards in the operation of elevators and tramways and to ensure that reasonable design and construction are used, that accepted safety devices and sufficient personnel are provided and that periodic maintenance, inspections and adjustments considered essential for the safe operation of elevators and tramways are made. The responsibility for design, construction, maintenance and inspection rests with the firm, person, partnership, association, corporation or company that owns elevators or tramways.
32 M.R.S. § 15202 (2012)
§ 15202. Definitions.
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. APPROVED. “Approved” means as approved by the Board of Elevator and Tramway Safety.
2. BOARD. “Board” means the Board of Elevator and Tramway Safety.
2-A. CHIEF INSPECTOR. “Chief inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways and who has been designated as chief inspector by the Commissioner of Professional and Financial Regulation.
3. COMMISSIONER. “Commissioner” means the Commissioner of Professional and Financial Regulation.
4. DEPARTMENT. “Department” means the Department of Professional and Financial Regulation.
4-A. DEPUTY INSPECTOR. “Deputy inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways under the direction of the chief inspector.
4-B. DIRECT SUPERVISION. “Direct supervision” means that a helper is working in the presence of a licensed elevator or lift mechanic at all times.
4-C. DIRECTOR. “Director” means the Director of the Office of Licensing and Registration.
5. ELEVATOR. “Elevator” includes an escalator or a manlift and means a guided hoisting and lowering mechanism equipped with a car, platform or load-carrying unit, including doors, well, enclosures, means and appurtenances. “Elevator” does not include an inclined stairway chairlift, a conveyor, chain or bucket hoist or a tiering, piling or feeding device. For the purposes of this subsection, “inclined stairway chairlift” means a mechanized chair apparatus running on a track or rail along the side of a staircase.
5-A. ELEVATOR CONTRACTOR. “Elevator contractor” means any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State.
6. ESCALATOR. “Escalator” means a power-driven, inclined and continuous stairway used for raising or lowering passengers.
7. REPEALED. Laws 2001, c. 573, § B-3.
7-A. HELPER. “Helper” means a person who is not licensed under this chapter as an elevator mechanic or lift mechanic and who assists in the installation, service or maintenance of elevators located in this State while working under the direct supervision of a licensed elevator mechanic or licensed lift mechanic.
7-B. LICENSED PRIVATE ELEVATOR INSPECTOR. “Licensed private elevator inspector” or “licensed private elevator and lift inspector” means an individual who has been licensed by the board to inspect elevators pursuant to this chapter and who is not a state employee whose duty is to inspect elevators.
8. LICENSED PRIVATE TRAMWAY INSPECTOR. “Licensed private tramway inspector” means an individual who has been licensed by the Board of Elevator and Tramway Safety to inspect tramways pursuant to this chapter and who is not a state employee whose duty is to inspect tramways.
9. MANLIFT. “Manlift” means a device, consisting of a power-driven, endless belt or chains, provided with steps or platforms and handholds attached to it for the transportation of personnel from floor to floor.
10. OPERATOR. “Operator” means the person or persons who physically operate an elevator or tramway.
11. OWNER. “Owner” means a firm, person, partnership, association, corporation or state or political subdivision that owns an elevator or tramway.
12. REPEALED. Laws 2001, c. 573, § B-6.
13. PHYSICALLY HANDICAPPED PERSON. “Physically handicapped person” means a person who has a physiological disability, infirmity, malformation, disfigurement or condition that eliminates or severely limits the person’s ability to have access to the person’s environment by normal ambulatory function, necessitating the use of crutches, a wheelchair or other similar device for locomotion.
14. SKIER. “Skier” means any person who engages in any of the activities described in section 15217, subsection 1, paragraph B.
15. SKI AREA. “Ski area” means the ski slopes and trails, adjoining skiable terrain, areas designated by the ski area operator to be used for skiing as defined by section 15217, subsection 1, paragraph B and passenger tramways administered or operated as a single enterprise within this State.
16. SKI INDUSTRY. “Ski industry” means the activities of all ski area operators.
17. SKI AREA OPERATOR. “Ski area operator” means a person or organization having operational responsibility for a ski area, including an agency or a political subdivision of this State.
18. REPEALED. Laws 2001, c. 573, § B-8.
19. TRAMWAY. “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 usually supported by trestles or towers with one or more spans. “Tramway” includes the following:
A. Reversible aerial tramways, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals. This class includes:
1) Single-reversible tramways, which are a type of reversible lift or aerial tramway having a single carrier, or single group of carriers, that moves back and forth between terminals on a single path of travel, sometimes called “to-and-fro” aerial tramways; and
2) Double-reversible tramways, which are a type of reversible lift or aerial tramway having 2 carriers, or 2 groups of carriers, that oscillate back and forth between terminals on 2 separate paths of travel, sometimes called “jig-back” aerial tramways;
B. Aerial lifts and skimobiles, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers circulate around a closed system and are activated by a wire rope or chain. The carriers usually make U-turns in the terminals and move along parallel and opposing paths of travel. The carriers may be open or enclosed cabins, chairs, cars or platforms. The carriers may be fixed or detachable. This class includes:
1) Gondola lifts, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cabins. The passengers embark and disembark while the carriers are stationary or moving slowly under a controlled arrangement;
2) Chair lifts, which are a type of lift or aerial tramway by which passengers are transported in chairs, either open or partially enclosed; and
3) Skimobiles, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cars that ride on a rigid structural system and are propelled by a wire rope or chain;
C. Surface lifts, which are that class of conveyance by which passengers are propelled by means of a circulating overhead wire rope while remaining in contact with the ground or snow surface. Transportation is limited to one direction. Connection between the passengers and the wire rope is by means of a device attached to and circulating with the haul rope known as a “towing outfit.” This class includes:
1) T-bar lifts, which are a type of lift in which the device between the haul rope and passengers forms the shape of an inverted “T,” propelling passengers located on both sides of the stem of the “T”;
2) J-bar lifts, which are a type of lift in which the device between the haul rope and passenger is in the general form of a “J,” propelling a single passenger located on the one side of the stem of the “J”; and
3) Platter lifts, which are a type of lift in which the device between the haul rope and passenger is a single stem with a platter or disk, attached to the lower end of the stem, propelling the passenger astride the stem of the platter or disk;
D. Tows, which are that class of conveyance in which passengers grasp a circulating haul rope, which may be natural or synthetic fiber or metallic, or a handle or gripping device attached to the circulating haul rope, and are propelled by the circulating haul rope. The passengers remain in contact with the ground or snow surface. The upward-traveling haul rope remains adjacent to the uphill track at an elevation that permits the passengers to maintain their grasp on the haul rope, handle or gripping device throughout the portion of the tow length that is designed to be traveled; and
E. Similar equipment not specified in this subsection, but conforming to at least one of the general descriptions in this subsection.
20. TRAMWAY PASSENGER. “Tramway passenger” means a person being transported or conveyed by a tramway, waiting in the immediate vicinity for transportation or conveyance by a tramway, moving away from the disembarkation or unloading point of a tramway to clear the way for the following passengers or boarding, embarking upon or disembarking from a tramway.
§ 15203. Retroactive effect; exception
This chapter may not be construed to prevent the use or sale of elevators in this State that were being used or installed prior to January 1, 1950 and that have been made to conform to the rules of the board covering existing installations and must be inspected as provided for in this chapter.
This chapter does not apply to elevators or tramways on reservations of the Federal Government, to elevators used for agricultural purposes on farms or to elevators located or maintained in private residences, as long as they are exclusively for private use.
§ 15204. Appeals; variances
A person aggrieved by an order or act of the chief inspector or a deputy inspector under this chapter may, within 15 days after notice of the order or act, appeal from the order or act to the board, which shall hold a hearing pursuant to Title 5, chapter 375, subchapter IV. After the hearing, the board shall issue an appropriate order either approving or disapproving the order or act.
Any person who is or will be aggrieved by the application of any law, code or rule relating to the installation or alteration of elevators or tramways may file a petition for a variance, whether compliance with that provision is required at the time of filing or at the time that provision becomes effective. The filing fee for a petition for a variance must be set by the director under section 15225-A. The chief inspector may grant a variance if, owing to conditions especially affecting the particular building or installation involved, the enforcement of any law, code or rule relating to elevators or tramways would do manifest injustice or cause substantial hardship, financial or otherwise, to the petitioner or any occupant of the petitioner’s building or would be unreasonable under the circumstances or condition of the property, provided that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of that law, code or rule. In granting a variance under this section, the chief inspector may impose limitations both of time and of use, and a continuation of the use permitted may be conditioned upon compliance with rules made and amended from time to time. A copy of the decision must be sent to all interested parties.
§ 15205. Board of Elevator and Tramway Safety
The Board of Elevator and Tramway Safety, as established by Title 5, section 12004-A, subsection 14, consists of 9 members, of whom 7 are appointed by the Governor. Of the 7 members of the board appointed by the Governor, one must be an owner or lessee of an elevator in the State; one must be a manufacturer of elevators; one must be a manufacturer or installer of accessibility lifts; one must be a licensed elevator mechanic; one must be a ski area operator presently operating tramways in the State; one must be a qualified licensed professional engineer who is familiar with tramway design, inspection and operation; and one must be a public member as defined in Title 5, section 12004-A. The 8th member of the board must be a physically handicapped person appointed by the Director of the Bureau of Rehabilitation Services, subject to the approval of the Governor. The 9th member of the board must be a member of the Division of Fire Prevention appointed by the Commissioner of Public Safety. Appointments are for 3-year terms. Appointments of members must comply with Title 10, section 8009. A member may be removed by the Governor for cause.
1. DELETED. Laws 2007, c. 402, § NN-1.
2. MEETINGS; CHAIR; QUORUM. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Five members of the board constitute a quorum.
3. DELETED. Laws 2007, c. 402, § NN-1.
§ 15205. Board of Elevator and Tramway Safety
The Board of Elevator and Tramway Safety, as established by Title 5, section 12004-A, subsection 14, consists of 9 members, of whom 7 are appointed by the Governor. Of the 7 members of the board appointed by the Governor, one must be an owner or lessee of an elevator in the State; one must be a manufacturer of elevators; one must be a manufacturer or installer of accessibility lifts; one must be a licensed elevator mechanic; one must be a ski area operator presently operating tramways in the State; one must be a qualified licensed professional engineer who is familiar with tramway design, inspection and operation; and one must be a public member as defined in Title 5, section 12004-A. The 8th member of the board must be a physically handicapped person appointed by the Director of the Bureau of Rehabilitation Services, subject to the approval of the Governor. The 9th member of the board must be a member of the Division of Fire Prevention appointed by the Commissioner of Public Safety. Appointments are for 3-year terms. Appointments of members must comply with Title 10, section 8009. A member may be removed by the Governor for cause.
1. DELETED. Laws 2007, c. 402, § NN-1.
2. MEETINGS; CHAIR; QUORUM. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Five members of the board constitute a quorum.
3. DELETED. Laws 2007, c. 402, § NN-1.
§ 15206. Powers and duties of board
The board shall administer, coordinate and enforce this chapter and has the following powers and duties in addition to those otherwise set forth in this chapter.
1. RULES. The board shall, in accordance with Title 5, chapter 375, adopt rules to implement the purposes of this chapter, including rules for the safe and proper construction, installation, alteration, repair, use, operation and inspection of elevators and tramways in the State. The rules must include standards for the review and audit of inspections performed by licensed private elevator inspectors not employed by the State. The rules must conform as nearly as practicable to the established standards as approved by the American National Standards Institute or its successor or other organization approved by the board. Rules adopted by the board under this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Board rules that are standards of the American National Standards Institute or its successor or other organization approved by the board must be obtained from the publisher.
2, 3. DELETED. Laws 2007, c. 402, § NN-2.
§ 15206-A. Denial or refusal to renew license; disciplinary action
The board may deny a license, refuse to renew a license or impose the disciplinary sanctions authorized by Title 10, section 8003, subsection 5-A for any of the reasons enumerated in Title 10, section 8003, subsection 5-A, paragraph A.
§ 15207. Repealed. Laws 1999, c. 687, § F-11
§ 15208. Examination of private elevator and lift inspectors; licenses and renewals
The board shall set standards necessary for the licensure and renewal of private elevator and lift inspectors. The board may adopt rules relating to the qualifications for licensure and renewal of private elevator and lift inspectors, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.
An elevator contractor or a person who is licensed as a private elevator and lift inspector who services an elevator or lift equipment may not inspect that elevator or lift equipment within 12 months from the date of servicing that elevator or lift equipment.
§ 15208-A. Registration of elevator contractors
Any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State shall register with the board annually. The registration must be submitted on a form provided by the board and must include the names and addresses of all licensed private inspectors, licensed mechanics and all helpers employed by the elevator contractor. An elevator contractor shall notify the board of any change in the information required under this section within 30 days of the change. The required fee for registration must be set by the director under section 15225-A.
§ 15209. Examination of private tramway inspectors; licenses
The board shall license an applicant as a private tramway inspector, who may perform the inspections required on tramways, if that applicant:
1. REGISTRATION. Is a professional engineer with a current valid registration in some state. If an applicant for a private tramway inspector’s license demonstrates to the board that the applicant possesses more than 6 years’ experience in the construction, design, inspection and operation of tramways, this registration requirement may be waived by the board;
2. EXPERIENCE. Has considerable experience in the construction, design or maintenance of tramways;
3. EXPERIENCE IN INSPECTING. Has 4 years’ experience inspecting tramways while working for an insurance company, a government agency or a company performing tramway or similar equipment inspections;
4. CAPABILITY AND APTITUDE. Has the physical capability and aptitude to perform the duties of a private tramway inspector in a safe and thorough manner; and
5. EXAMINATION. Has sufficient experience and knowledge to achieve a satisfactory rating in an examination designed to test the applicant’s knowledge of orders and principles of tramway safety. When an applicant for a private tramway inspector’s license demonstrates more than 6 years’ experience in the construction, design, inspection and operation of tramways, the provisions for examination must be waived.
A. The examination for a licensed private tramway inspector must be given by the chief inspector or by 2 or more examiners appointed by the chief inspector. The examination must be written, in whole or in part, and must be confined to questions the answers to which will aid in determining the fitness and competency of the applicant for the intended service and must be of uniform standard throughout the State.
B. Deleted. Laws 2001, c. 573, § B-15.
C. A private tramway inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.
D. Applications for examination and license must be on forms furnished by the board. The examination fee for a private tramway inspector’s license must be set by the director under section 15225-A.
§ 15209-A. Private wire rope inspectors; licenses
The board shall license an applicant as a private wire rope inspector, who may perform the inspections required for each tramway equipped with wire rope, if that applicant has a total of 5 years’ experience in wire rope manufacture, installation, maintenance or inspection. A private wire rope inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.
§ 15210. Revocation of private tramway or elevator inspector’s license
The board may revoke a private tramway, elevator or lift inspection license or remove inspection endorsements from an elevator or lift mechanic’s license for the following causes:
1. FAILURE TO SUBMIT TRUE REPORTS. For failure to submit true reports concerning the conditions of a tramway or elevator or for conduct determined by the board to be contrary to the best interests of tramway or elevator safety or the board;
2. PHYSICAL INFIRMITIES. For physical infirmities that develop to a point at which it appears that an inspector or mechanic is no longer able to perform the required duties in a thorough and safe manner; or
3. REPEALED. Laws 2007, c. 402, § NN-4.
§ 15211. Notice of accidents
1. REPORTING ACCIDENTS. Each elevator or tramway accident that is caused by equipment failure or results in significant injury to a person or results in substantial damage to equipment must be reported by the owner or lessee to the chief inspector in accordance with the board’s rules.
2. REVOCATION OF CERTIFICATE. When an elevator or tramway accident as described in subsection 1 occurs, the inspection certificate for the involved elevator or tramway may be summarily revoked in accordance with and subject to the standards and limitations of Title 5, section 10004, pending decision on any application with the District Court for a further suspension.
§ 15212. Examination of accidents
The chief inspector may examine or cause to be examined the cause, circumstances and origin of all elevator or tramway accidents within the State. Upon request, the chief inspector shall furnish to the proper district attorney the names of witnesses and all information obtained.
§ 15213. Elevator or lift mechanics; license; definition
A person may not service, repair, alter or install any elevator unless that person is licensed as an elevator or lift mechanic under this chapter. Elevator work in industrial plants and manufacturing plants may be performed by plant personnel who are not licensed under this chapter if the work is supervised by the plant engineer and performed in compliance with rules adopted by the board.
The word “elevator,” as used in this chapter, includes all electrical equipment, wiring, steelwork and piping in the elevator machine room, hoistway and pit pertaining to the operation and control of an elevator, except power feeders and required power equipment up to the control panel, heating, lighting, ventilation and drainage equipment.
CASE NOTES
1. Term “industrial plant” would be understood by an ordinary man to apply to any factory, business, or concern that is engaged primarily in the manufacture or assembly of goods or the processing of raw materials or both. Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).
2. By no stretch of the imagination could a bank building, a hotel, a theater, an office building, or a restaurant be considered an industrial plant; while one sometimes speaks of “the movie industry,” the “hotel industry,” or “the banking industry,” that is merely a loose use of language to convey that idea that the particular business is a sizeable one; in spite of that colloquialism, we do not speak of the buildings housing such businesses as “industrial plants.” Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).
3. Insurance company’s home office, which consisted of office facilities at which its employees worked, was not an “industrial plant” as that term is used in former Me. Rev. Stat. Ann. tit. 26, § 439 (now Me. Rev. Stat. Ann. tit. 32, § 15213). Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).
§ 15214. Issuance; qualifications
The board shall issue an elevator or lift mechanic’s license to any applicant who has at least 2 years’ experience in the service, repair, alteration or installation of elevators and lifts while employed by an elevator company, or has equivalent experience as defined by rules of the board, and meets the requirements established pursuant to section 15216.
A licensed elevator or lift mechanic may not have more than 2 helpers under direct supervision. These helpers need not be licensed.
A licensed elevator or lift mechanic shall comply with the provisions of this chapter and the rules adopted by the board. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.
§ 15215. Repealed. Laws 2001, c. 573, § B-22
§ 15216. Examination of elevator or lift mechanics; applications; licenses; renewals
The board shall set standards necessary for the licensure and renewal of elevator or lift mechanics. The board may adopt rules relating to the qualifications for licensure and renewal of elevator or lift mechanics, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.
§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24
§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24
§ 15216-C. License renewal
Any license issued under this chapter is renewable upon satisfaction of the applicable requirements for renewal and payment of the renewal fee as set by the director under section 15225-A. The expiration dates for licenses issued under this chapter may be established at such other times as the commissioner may designate.
A license may be renewed up to 90 days after the date of its expiration upon payment of a late fee in addition to the renewal fee as set under section 15225-A. Any person who submits an application for renewal more than 90 days after the license expiration date must pay an additional late fee as set under section 15225-A and is subject to all requirements governing new applicants under this chapter, except that the board may in its discretion waive the examination and other requirements. Notwithstanding any other provision of this chapter, the board shall waive the examination if a renewal application is made within 90 days after separation from the United States Armed Forces, under conditions other than dishonorable, by a person who failed to renew that person’s license because that person was on active duty in the Armed Forces; except that the waiver of examination may not be granted if the person served a period of more than 4 years in the Armed Forces, unless that person is required by some mandatory provision to serve a longer period and that person submits satisfactory evidence of this mandatory provision to the board.
§ 15217. Skiers’ and tramway passengers’ responsibilities
1. DEFINITIONS. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. “Inherent risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.
B. “Skiing” means the use of a ski area for snowboarding or downhill, telemark or cross-country skiing; for sliding downhill or jumping on snow or ice on skis, a toboggan, sled, tube, snowboard, snowbike or any other device; or for similar uses of any of the facilities of the ski area, including, but not limited to, ski slopes, trails and adjoining terrain.
C. “Skier” means any person at a ski area who participates in any of the activities described in paragraph B.
D. “Competitor” means a skier actually engaged in competition or a special event or training or practicing for competition or a special event on any portion of the ski area made available by the ski area operator.
E. “Freestyle terrain” includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes and all other constructed or natural features, halfpipes, quarterpipes and freestyle-bump terrain.
2. ACCEPTANCE OF INHERENT RISKS. Because skiing as a recreational sport and the use of passenger tramways associated with skiing may be hazardous to skiers or passengers, regardless of all feasible safety measures that may be taken, each person who participates in the sport of skiing accepts, as a matter of law, the risks inherent in the sport and, to that extent, may not maintain an action against or recover from the ski area operator, or its agents, representatives or employees, for any losses, injuries, damages or death that result from the inherent risks of skiing.
3. WARNING NOTICE. A ski area operator shall post and maintain at the ski area where the lift tickets and ski school lessons are sold and at the loading point of each passenger tramway signs that contain the following warning notice:
WARNING:
Under Maine law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, corn, crust and slush and cut-up, granular and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, rocks, stumps, trees, forest growth or other natural objects and collisions with such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.
4. DUTY TO SKI WITHIN LIMITS OF ABILITY. A skier has the sole responsibility for knowing the range of the skier’s own ability to negotiate any slope or ski trail, and it is the duty of the skier to ski within the limits of the skier’s own ability, to maintain control of the rate of speed and the course at all times while skiing, to heed all posted and oral warnings and instructions by the ski area operator and to refrain from acting in a manner that may cause or contribute to the injury of the skier or others.
4-A. COMPETITION AND FREESTYLE TERRAIN. A competitor accepts all inherent risks of skiing and all risks of course, venue and area conditions, including, but not limited to: weather and snow conditions; obstacles; course or feature location, construction and layout; freestyle terrain configuration and condition; collision with other competitors; and other courses, layouts and configurations of the area to be used.
5. RESPONSIBILITY FOR COLLISIONS. The responsibility for a collision between any skier while skiing and any person or object is solely that of the skier or skiers involved in the collision and not the responsibility of the ski area operator or its agents, representatives or employees.
6. LIABILITY. A ski area operator or its agents, representatives or employees are not liable for any loss, injury, damage or death resulting from the design of the ski area.
7. PROVISION OF NAME AND CURRENT ADDRESS REQUIRED. A skier involved in, causing or contributing to a collision or other accident at a ski area that results in a fall or injury may not leave the vicinity of the collision or accident before giving that skier’s name and current address to an employee or representative of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision, in which case the person leaving the scene of the collision shall give that skier’s name and current address after securing such aid. A ski area operator, or its agents, representatives or employees, is not liable for a skier’s failure to provide that skier’s name and address or for leaving the vicinity of an accident or collision.
8. ACTIONS NOT PROHIBITED. This section does not prevent the maintenance of an action against a ski area operator for:
A. The negligent operation or maintenance of the ski area; or
B. The negligent design, construction, operation or maintenance of a passenger tramway.
CASE NOTES
1. In a negligence action arising from the collision of two skiers, plaintiff and defendant, the clear intent under Maine law to confine the responsibility for skiing accidents to those skiers involved, coupled with the lack of an agreement of any sort between plaintiff and defendant as to any allocation of responsibility for any such accident, defendant failed to prove by a preponderance of the evidence that he should prevail as a matter of law on his defense of assumption of risk. Bresnahan v. Bowen, 263 F. Supp. 2d 131, 2003 U.S. Dist. LEXIS 8623 (D. Me. 2003).
2. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
3. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) did not support the application of a primary assumption of the risk defense, and the statute also lacked any language that added proof of the nonexistence of an inherent risk to the elements of a skier’s negligence claim. Former § 488 established a relatively simple and straightforward process, which, first, protected ski area operators from strict liability claims that otherwise might arise from allegations that ski area operation is an inherently dangerous activity, and second, stated that establishing liability required an injured skier to prove that the skier’s damages were caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
4. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
5. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
6. Under Me. Rev. Stat. Ann. tit. 32, § 15217(1)(A) and (2), a ski area was immune from an injured skier’s tort suit arising out of a collision with a snow-making hydrant; thus, summary judgment for the ski area was proper. The skier’s contention that his claim was cognizable under § 15217(8) if the ski area had been negligent in the operation and maintenance of the snow-making hydrant was without merit because such a suit must not arise out of an inherent risk of skiing, of which a collision with snow-making equipment is such a risk. Green v. Sunday River Skiway Corp., 81 F. Supp. 2d 122, 1999 U.S. Dist. LEXIS 19890 (D. Me. 1999).
7. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) does not specify what risks are inherent in skiing, and in the absence of such statutory specification, whether a skier’s injury results from an inherent risk depends on the factual circumstances of each case. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
8. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
9. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).
10. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
11. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
12. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
13. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).
14. Trial court did not err in granting the ski area operator’s motion for summary judgment because the injured patron was barred from recovery pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217 where the patron’s injury resulted from a collision with a hillock, and collisions with or falls resulting from natural and manmade objects were included within the inherent risks of skiing. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).
15. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).
§ 15218. Duties of skiers and tramway passengers; acts prohibited
A person engaged in skiing or riding on a tramway may not:
1. EMBARK OR DISEMBARK FROM TRAMWAY EXCEPT AS DESIGNATED. Embark or disembark from any tramway, except at a designated area;
2. THROW OR EXPEL OBJECTS FROM TRAMWAY. While riding on any tramway or similar device, throw or expel any object or do any act or thing that interferes with the running of that tramway;
3. ENGAGE IN HARMFUL CONDUCT. While riding on any tramway, willfully engage in any type of conduct that will contribute to or cause injury to any person, or to the tramway, or willfully place any object in the uphill ski track that will cause injury to any person or cause damage to or derailment of the tramway;
4. CLOSED TRAILS. Ski or otherwise use a slope or trail that has been designated “closed” by the operator without written permission of the operator or the operator’s designee;
5. REMOVAL OR DESTRUCTION OF SIGNS. Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail by the operator; or
6. OUT-OF-BOUNDS AREAS. Ski or otherwise use any portion of the ski area that is not a part of a regular network of trails or areas open to the public, including wooded areas between trails, undeveloped areas and all other portions not open to the public, if the operator has properly posted these areas as being closed to public access.
§ 15219. Hang gliding
Hang gliding is also recognized as a hazardous sport. Therefore, a person who is hang gliding is deemed to have assumed the risk and legal responsibility for any injury to the hang glider’s person or property in the same manner and to the same extent as skiers under this chapter.
§ 15220. Penalties
1. VERBAL WARNING; FORFEITURE OF LIFT TICKET. Any owner, manager or employee of any ski area, who finds a person in violation of section 15218, may first issue a verbal warning to that individual or suspend the individual’s lift use privileges. Any person who fails to heed the warning issued by the ski area owner, manager or employee shall forfeit the ski lift ticket and ski lift use privileges and must be refused issuance of another lift ticket and is liable for any damages to the tramway and its incidental equipment that have been caused by the individual’s misconduct.
2. COST OF RESCUE OPERATION. When it is necessary to commence a rescue operation as a result of a violation of section 15218, subsection 6, any person who has committed the violation is liable for the cost of that rescue operation.
§ 15221. Inspection of elevators and tramways
1. FEES; INSPECTION CERTIFICATE. Each elevator or tramway proposed to be used within this State must be thoroughly inspected by either the chief inspector, a deputy inspector or a licensed private elevator or tramway inspector and, if found to conform to the rules of the board, the board shall issue to the owner an inspection certificate. Fees for inspection and certification of elevators and tramways must be set by the director under section 15225-A and must be paid by the owner of the elevator or tramway. The certificate must specify the maximum load to which the elevator or tramway may be subjected, the date of its issuance and the date of its expiration. The elevator certificate must be posted in the elevator and the tramway certificate at a conspicuous place in the machine area.
2. SCHEDULED INSPECTIONS. The owner of an elevator shall have the elevator inspected annually by a licensed private elevator inspector, the chief inspector or a deputy inspector. The owner of a tramway shall have the tramway inspected by a licensed private tramway inspector, the chief inspector or a deputy inspector twice each year. One tramway inspection must be made when weather conditions permit a complete inspection of all stationary and moving parts. The 2nd tramway inspection must be made while the tramway is in operation.
3. TEMPORARY SUSPENSION OF INSPECTION CERTIFICATE; CONDEMNATION CARD. When, in the inspector’s opinion, the elevator or tramway can not continue to be operated without menace to the public safety, the chief inspector or deputy inspector may temporarily suspend an inspection certificate in accordance with Title 5, section 10004 and post or direct the posting of a red card of condemnation at every entrance to the elevator or tramway. The condemnation card is a warning to the public and must be of such type and dimensions as the board determines. The suspension continues, pending decision on any application with the District Court for a further suspension. The condemnation card may be removed only by the inspector posting it or by the chief inspector.
4. SPECIAL CERTIFICATE; SPECIAL CONDITIONS. When, upon inspection, an elevator or tramway is found by the inspector to be in reasonably safe condition but not in full compliance with the rules of the board, the inspector shall certify to the chief inspector the inspector’s findings and the chief inspector may issue a special certificate, to be posted as required in this section. This certificate must set forth any special conditions under which the elevator or tramway may be operated.
5. INSPECTION REPORTS. Licensed private tramway and elevator inspectors shall submit inspection reports to the owner on a form provided by the board within 15 working days from the date of the inspection.
6. FOLLOW-UP INSPECTIONS. All follow-up inspections necessary to enforce compliance must be performed by either the chief inspector or a deputy inspector. A fee set by the director under section 15225-A must be charged for those follow-up inspections.
7. CERTIFICATE NOT TRANSFERABLE. An inspection certificate may not be transferred to any other person, firm, corporation or association. If ownership of an elevator or tramway is transferred, the new owner must apply for a new inspection certificate as required by section 15229, subsection 7.
§ 15222. Condemned elevators and tramways not to be operated
An elevator or tramway that has been condemned under section 15221 may not be operated in this State. Any person who owns or operates or causes to be operated for other than repair or corrective purposes an elevator or tramway in violation of this section commits a Class E crime and must be punished by a fine of not more than $ 500 or by imprisonment for not more than 6 months, or by both.
§ 15223. Criminal operation of elevator or tramway
1. PROHIBITION. An owner of an elevator or tramway is guilty of criminal operation of an elevator or tramway if that owner operates that elevator or tramway without a current and valid inspection certificate.
2. STRICT LIABILITY. Criminal operation of an elevator or tramway is a strict liability crime as defined in Title 17-A, section 34, subsection 4-A.
3. SPECIFIC NUMBER OF DAYS OF CRIMINAL OPERATION. Each day of criminal operation does not constitute a separate crime.
4. CLASS OF CRIME; ENHANCED FINE. Criminal operation of an elevator or tramway is a Class E crime. However, notwithstanding Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, the court may impose an enhanced fine. The fine amount above that authorized under Title 17-A, section 1301 is based solely on the number of days of criminal operation pleaded and proved by the State. For each day of criminal operation pleaded and proved, the court may increase the fine amount by up to $ 100 for each of those days.
5. IMPOSITION OF SENTENCE WITHOUT ENHANCED FINE. Nothing in subsection 3 or 4 may be construed to restrict a court, in imposing any authorized sentencing alternative, including a fine in an amount authorized under Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, from considering the number of days of illegal operation, along with any other relevant sentencing factor, which need not be pleaded or proved by the State.
§ 15224. Installation of new elevators and tramways; fees
Detailed plans or specifications of each new or altered elevator or tramway must be submitted to and approved by the chief inspector before the construction may be started. Fees for examination of the plans or specifications must be set by the director under section 15225-A.
§ 15225. Repealed. Laws 2001, c. 573, § B-29
§ 15225-A. Fees
The Director of the Office of Licensing and Registration within the Department of Professional and Financial Regulation may establish by rule fees for purposes authorized under this chapter in amounts that are reasonable and necessary for their respective purposes, except that the fee for any one purpose other than permit and inspection fees may not exceed $ 500. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
§ 15226. Reports by inspectors
A deputy inspector or licensed private inspector shall make a full report to the chief inspector, giving all data required by the rules adopted by the board and shall report to the chief inspector and to the owner all defects found and all noncompliances with the rules. When any serious infraction of the rules is found by a deputy inspector or licensed private inspector and that infraction is, in the opinion of the inspector, dangerous to life, limb or property, the inspector shall report that infraction immediately to the chief inspector.
§ 15227. Powers of chief inspector
The board is authorized to investigate all elevator and tramway accidents that result in injury to a person or in damage to the installation.
The chief inspector is authorized:
1. ENFORCE LAWS AND RULES. To enforce the laws of the State governing the use of elevators and tramways and to enforce adopted rules of the board;
2. FREE ACCESS TO PREMISES OR LOCATION. To provide free access for deputy inspectors, including the chief inspector, at all reasonable times to any premises in the State where an elevator or tramway is installed or is under construction for the purpose of ascertaining whether that elevator or tramway is installed, operated, repaired or constructed in accordance with this chapter;
3. SUPERVISE INSPECTORS. To allocate and supervise the work of deputy inspectors;
4. CERTIFICATES. To issue and temporarily suspend certificates allowing elevators and tramways to be operated pursuant to Title 5, chapter 375;
5. EXAMINATIONS. To hold examinations and establish the fitness of applicants to become licensed private elevator or tramway inspectors or elevator mechanics, and to issue certificates or licenses to those persons who have successfully passed required examinations and been approved by the board as licensed private elevator or tramway inspectors or elevator mechanics; and
6. TAKE UNINSPECTED OR UNREPAIRED ELEVATORS AND TRAMWAYS OUT OF SERVICE. To take an elevator or tramway out of service in accordance with Title 5, section 10004 if an inspection report has not been submitted to the board within 60 days of the expiration of the most recent certificate or if the owner has failed to make repairs as required by the board. This power is in addition to the chief inspector’s powers under section 15221, subsection 3.
§ 15228. Elevator size
1. REQUIREMENTS. Notwithstanding section 15206, whenever a passenger elevator is installed in a building being newly constructed or in a new addition that extends beyond the exterior walls of an existing building, the passenger elevator must reach all levels within the building and be of sufficient size to allow the transport of a person on an ambulance stretcher in the fully supine position, without having to raise, lower or bend the stretcher in any way. This requirement applies to all plans approved by the board after January 1, 2002. The board shall adopt rules necessary to carry out the provisions of this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.
2. APPLICABILITY. This section applies only to multi-story buildings that house private entities or nonprofit organizations that serve the public or are places of public accommodation. Notwithstanding Title 5, section 4553, subsection 8, places of public accommodation include restaurants, cafes, hotels, inns, banks, theaters, motion picture houses, bars, taverns, night clubs, country clubs, convention centers, retail stores, shopping centers, hospitals, private schools, day care centers, senior citizen centers, doctor offices, professional offices, manufacturing facilities, apartment buildings, condominiums, state facilities or any private establishment that in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public. This section does not apply to any building owned by a local unit of government.
§ 15229. Duties of owners of elevators or tramways
1. OWNER RESPONSIBILITY. The responsibility for design, construction, maintenance and inspection of an elevator or tramway rests with the person, firm, partnership, association, corporation or company that owns the elevator or tramway.
2. OBTAIN INSPECTION CERTIFICATE. The owner of an elevator or tramway shall submit an annual application for an annual inspection certificate together with the inspection report within 30 business days of the inspection and prior to the expiration of the current certificate. The application must be on a form provided by the board and must be accompanied by the required fee set by the director under section 15225-A. A late fee set by the director under section 15225-A may be assessed for failure to submit the application and inspection report in a timely manner.
3. FAILURE TO QUALIFY FOR INSPECTION CERTIFICATE. The owner of an elevator or tramway that does not qualify for an inspection certificate shall take the elevator or tramway out of operation until the required repairs have been made and a new inspection certificate has been issued.
4. NOTIFY BOARD WHEN REQUIRED REPAIRS MADE. The owner of an elevator or tramway shall notify the board when required repairs have been made and provide the board with satisfactory evidence of completion.
5. ELEVATOR OR TRAMWAY DECLARED IDLE OR PLACED OUT OF SERVICE. The owner of an elevator or tramway that has been declare d idle or placed out of service in accordance with rules adopted by the board shall notify the board within 30 days of declaring the elevator or tramway idle.
6. REMOVAL. The owner of an elevator or tramway shall notify the board within 30 days of the removal of the elevator or tramway.
7. CHANGE OF OWNERSHIP. The owner of record of an elevator or tramway shall notify the board of a transfer of ownership of an elevator within 30 days of such transfer. The new owner shall apply, on a form provided by the board, for a new inspection certificate that will be issued without the need for an additional inspection for the remainder of the term of the current certificate. A fee for issuance of a new inspection certificate may be set by the director under section 15225-A.
8. FAILURE TO COMPLY. In addition to the remedies available under this chapter, an owner who fails to comply with the provisions of this chapter or rules adopted by the board is subject to the provisions of Title 10, section 8003, subsection 5 whether or not the elevator or tramway has a current inspection certificate, except that, notwithstanding Title 10, section 8003, subsection 5, paragraph A-1, subparagraph 3, a civil penalty of up to $ 3,000 may be imposed for each violation.
Massachusetts Ski Safety Act
Posted: July 22, 2013 Filed under: Massachusetts, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Massachusetts, Massachusetts Ski Safety Act, ski area, Ski Resort, Ski Safety Act, Skier, skiing, Snowboarder, winter sports 1 CommentMassachusetts Ski Safety Act
ANNOTATED LAWS OF MASSACHUSETTS
PART I ADMINISTRATION OF THE GOVERNMENT
TITLE XX PUBLIC SAFETY AND GOOD ORDER
Chapter 143 Inspection and Regulation of, and Licenses for, Buildings, Elevators and Cinematographs
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 143, § 71I (2012)
§ 71I. Recreational Tramways — Definitions.
As used in sections seventy-one H to seventy-one S, inclusive, the following words shall, unless the context otherwise requires, have the following meanings:
“Recreational tramway”, 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. The term recreational tramway shall include the following:
(1) Two-car aerial passenger tramway, a device used to transport passengers in two open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
(2) Multi-car aerial passenger tramway, a device used to transport passengers in several open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices.
(3) Skimobile, a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices.
(4) Chair lift, 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, or similar devices.
(5) J bar, T bar or platter pull, so-called, and similar types of devices, 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.
(6) Rope tow, a type of transportation which pulls the skiers riding on skis as the skiers grasp the rope manually, or similar devices.
“Operator”, a person, including the commonwealth or any political subdivision thereof, who owns or controls the operation of a recreational tramway.
“Board”, the recreational tramway board.
“Skier”, any person utilizing the ski area under control of a ski area operator for the purpose of skiing, whether or not that person is a passenger on a recreational tramway, including riders during a non-skiing season.
“Ski area”, all of the slopes and trails under the control of the ski area operator, including cross-country ski areas, slopes and trails, and any recreational tramway in operation on any such slopes or trails administered or operated as a single enterprise but shall not include base lodges, motor vehicle parking lots and other portions of ski areas used by skiers when not actually engaged in the sport of skiing.
“Ski area operator”, the owner or operator of a ski area, including an agency of the commonwealth or a political subdivision thereof, or the employees, agents, officers or delegated representatives of such owner or operator, including the owner or operator of a cross-country ski area, slope or trail, and of any recreational tramway in operation on any such slope or trail administered or operated as a single enterprise.
“Ski slope or trail”, an area designed by the person or organization having operational responsibility for the ski area as herein defined, including a cross-country ski area, for use by the public in furtherance of the sport of skiing, meaning such designation as is set forth on a trail map or as otherwise designated by a sign indicating to the skiing public the intent that the area be used by skiers for purpose of participating in the sport.
HISTORY: 1968, 565, § 1; 1978, 455, §§ 1, 2; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The 1978 amendment, in the first sentence, extended the applicability of definitions through § 71S, and added the definitions of “Skier,” “Ski area,” “Ski area operator,” and “Ski slope or trail.”
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Law Reviews
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
Language of ALM GL c 143, § 71I limits the definition of skier to any person utilizing a ski area for the purpose of skiing, and shows that the Massachusetts Ski Safety Act (Act), ALM GL c 143, §§ 71N, 71O, was not intended to include a non-skiing sport like snow tubing; the Act did not relieve a ski operator from a claim for injuries from a snow tubing accident, and the ski operator’s summary judgment motion was denied. Burden v. Amesbury Sports Park, Inc. (2003, Super Ct) 16 Mass L Rep 744, 2003 Mass Super LEXIS 276.
Snowboarders falls within the definition of skiers. Rich v. Tamarack Ski Corp. (2008) 24 Mass L Rep 448, 2008 Mass. Super. LEXIS 324.
Because snowboarders were included within the definition of “skiers” found in ALM GL c 143, § 71I, under ALM GL c 143, § 71O, a ski area operator and an instructor were not liable to a snowboarder who was injured when she ran into the instructor who was standing at the side of a ski hill. Rich v. Tamarack Ski Corp. (2008) 24 Mass L Rep 448, 2008 Mass. Super. LEXIS 324.
Because a racing skier’s collision with a lift tower stanchion was off the race course and off the trail–as defined in ALM GL c 143, § 71I– ALM GL c 143, § 71O, placed the duty to avoid collisions on the skier alone. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
§ 71J. Recreational Tramways — Board to Adopt Rules and Regulations for Construction, Maintenance; Licensing of Inspectors.
After a hearing, the board shall adopt, and may from time to time amend or revoke, rules and regulations for the construction, operation and maintenance of recreational tramways and for the inspection, licensing and certification of inspectors thereof. The board shall in like manner adopt, and from time to time amend or revoke, rules and regulations for a system of signs to be used by a ski area operator in order to promote the safety of skiers. Such system shall incorporate standards in general use in the skiing industry to evaluate the difficulty of slopes and trails and to adequately alert skiers to the known danger of any slope or trail or the ski area. The attorney general shall assist the board in framing such rules and regulations.
HISTORY: 1968, 565, § 1; 1978, 455, § 3; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The 1978 amendment, added the second and third sentences, relative to sign systems.
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board. 526 CMR 1.01 through 3.04; , 4.00 (1.1-1.8), 5.00 (2.1-2.6), 6.00 (3.1-3.6), 7.00 (4.1, 4.2), 8.01, 8.02.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71K. Recreational Tramways — to Be Licensed.
No recreational tramway shall be operated unless a license for such operation has been issued by the board. Such license shall be issued for a term of not longer than one year, upon application therefor on a form furnished by the board, and upon a determination by the board that the recreational tramway conforms to the rules and regulations of the board. In making such determination the board may rely upon the report of an inspector certified by it in accordance with its rules and regulations.
HISTORY: 1968, 565, § 1; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Jurisprudence
51 Am Jur 2d, Licenses and Permits §§ 10, 11, 64-68, 74, 76.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71M. Recreational Tramways — Appeals to Superior Court from Orders of Board.
Any operator who is aggrieved by any order of the board may appeal therefrom to the superior court. No such appeal shall suspend the operation of the order made by the board; provided that the superior court may suspend the order of the board pending the determination of such appeal whenever, in the opinion of the court, justice may require such suspension. The superior court shall hear such appeal at the earliest convenient day and shall enter such decree as justice may require.
HISTORY: 1968, 565, § 1; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Jurisprudence
18C Am Jur Pl & Pr Forms (Rev), Occupations, Trades, and Professions, Forms 20, 21.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71N. Recreational Tramways — Posting of Signs and Notices by Ski Area Operator.
A ski area operator shall:
(1) whenever maintenance or snow-making equipment is being employed on any ski slope or trail open to the public, conspicuously place or cause to be placed, notice at or near the top of any ski slope or trail being maintained that such equipment is being so employed, and shall conspicuously indicate the location of any such equipment in a manner to afford skiers reasonable notice of the proximity of such equipment;
(2) mark and identify all trail maintenance and emergency vehicles, including snowmobiles, and furnish such vehicles with flashing or rotating lights, which shall be operated during the time that said vehicles are in operation within the ski area;
(3) with respect to the emergency use of vehicles within the ski area, including but not limited to uses for purposes of removing injured or stranded skiers, or performing emergency maintenance or repair work to slopes, trails or tramway equipment, not be required to post such signs as is required by clause (1), but shall be required to maintain such lighting equipment required by clause (2);
(4) mark the location of any hydrants used in snow-making operations and located within or upon a slope or trail;
(5) conspicuously place within the ski area, in such form, size and location as the board may require, and on the back of any lift ticket issued notice, in plain language, of the statute of limitations and notice period established in section seventy-one P; and
(6) maintain a sign system on all buildings, recreational tramways, ski trails and slopes in accordance with rules and regulations promulgated by the board and shall be responsible for the maintenance and operation of ski areas under its control in a reasonably safe condition or manner; provided, however, that ski area operators shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.
HISTORY: 1978, 455, § 4; 1996, 58, § 28; 1996, 151, § 528.
NOTES: Editorial Note
Acts 1978, Ch. 455, § 4, replaced former §§ 71N and 71O with sections 71N through 71S; the former provisions of §§ 71N and 71O are now contained in §§ 71R and 71S, respectively. Section 5 of the inserting act provides as follows:
Section 5. The provisions of clause (5) of section seventy-one N of chapter one hundred and forty-three of the General Laws, inserted by section three of this act, relative to the printing on lift tickets of a notice of the statute of limitations, shall not apply to a ski area operator who has a supply of such tickets already printed for the nineteen hundred and seventy-eight and nineteen hundred and seventy-nine skiing season, insofar as he may exhaust such supply. Such ski area operator shall, however, comply with said notice requirements beginning with the nineteen hundred and seventy-nine and nineteen hundred and eighty skiing season.
The first 1996 amendment, (ch 58), effective July 1, 1996, repealed this section.
The second 1996 amendment, (ch 151), effective July 1, 1996, repealed the provisions of Acts 1996, Ch. 58, § 28, that repealed this section, thereby restoring this section.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations. 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing. 526 CMR 8.01 et seq.
Jurisprudence
57A Am Jur 2d, Negligence § 32.
15 Am Jur Trials 147, Skiing Accident Litigation.
20 Am Jur Proof of Facts 2d 1, Liability for Skiing Accident.
Law Reviews
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
One year limitation period in GL c 143 § 71P is not applicable only to action for violation of duty prescribed by GL c 143 § 71N but applies to all personal injury actions brought by skiers against ski area operator arising out of skiing injuries. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
ALM GL c 143 § 71O does not exempt ski area operator from liability for injuries caused by its agent. Tilley v. Brodie Mountain Ski Area, Inc. (1992) 412 Mass 1009, 591 NE2d 202, 1992 Mass LEXIS 273.
Summary judgment in favor of ski area operator was appropriate where plaintiff was skier, who slipped while approaching ski lift, since ALM GL c 143 § 71N specifically excludes liability for injury to skier arising out of risks inherent in sport of skiing, and a skier accepts, as a matter of law, risk that he or she might be injured in manner that falls within statutorily specified risks as well as risks contemplated by statutory scheme. Fetzner v. Jiminy Peak, The Mountain Resort (1995) 1995 Mass App Div 55, 1995 Mass App Div LEXIS 30.
Ski area operator was not liable for injuries sustained by skier who, after skiing over clumps of ice on trail, lost control and skied off trail edge into woods, since injuries arose out of risks inherent in skiing, and skier failed to control speed and direction. Spinale v. Pam F., Inc. (1995) 1995 Mass App Div 140, 1995 Mass App Div LEXIS 66.
Massachusetts Ski Safety Act (Act), ALM GL c 143, §§ 71N, 71O, was not intended to include a non-skiing sport like snow tubing; the Act did not relieve a ski operator from a claim for injuries from a snow tubing accident, and the ski operator’s summary judgment motion was denied. Burden v. Amesbury Sports Park, Inc. (2003, Super Ct) 16 Mass L Rep 744, 2003 Mass Super LEXIS 276.
Although a ski area operator had a general duty to operate the ski areas under its control in a reasonably safe manner, pursuant to ALM GL c 143, § 71N(6), because a racing skier’s collision with a lift tower stanchion was off the race course and off the trail, ALM GL c 143, § 71O, placed the duty to avoid collisions on the skier alone. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
In a negligence action brought by an inexperienced skier who was seriously injured when she struck a snow gun while skiing on a low intermediate trail, even though the ski area operator’s trail markings did not violate the Massachusetts Ski Safety Act, ALM GL c 143, § 71N, or contribute to the accident and even though the skier had an obligation under ALM GL c 143, § 71O to avoid collisions with an object so long as the object was not improperly marked, the ski area operator was not entitled to summary judgment on all the negligence claims because there were factual disputes remaining as to whether the snow gun was adequately marked and padded. Peresypa v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 84417.
Reasonable jury could find that ski area operator breached its general duty under ALM GL c 143 § 71N(6), even though statute provides exception protecting operators from “damages…which arise out of risks inherent in sport of skiing,” where examples of inherent risks enumerated by statute include “variations in terrain, surface or subsurface snow, ice conditions or bare spots,” because presence of snow gun in middle of ski trail does not appear to fall into category of inherent risk. Eipp v. Jiminy Peak, Inc. (2001) 154 F Supp 2d 110, 2001 US Dist LEXIS 11229.
§ 71O. Recreational Tramways — Conduct, Responsibilities, and Duties of Skiers.
No skier shall embark or disembark upon a recreational tramway except at a designated location and during designated hours of operation, throw or expel any object from any recreational tramway while riding thereon, act in any manner while riding on a recreational tramway that may interfere with its proper or safe operation, engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall while traveling uphill on a ski lift, or cross the uphill track of a recreational tramway except at designated locations. A skier shall maintain control of his speed and course at all times, and shall stay clear of any snow-grooming equipment, any vehicle, towers, poles, or other equipment.
A skier who boards a recreational tramway shall be presumed to have sufficient abilities to use the same, and shall follow any written or oral instruction given regarding its use and no skier shall embark on a recreational tramway without authority of the operator. A skier skiing down hill shall have the duty to avoid any collision with any other skier, person or object on the hill below him, and, except as otherwise provided in this chapter, the responsibility for collisions by any skier with any other skier or person shall be solely that of the skier or person involved and not that of the operator, and the responsibility for the collision with any obstruction, man-made or otherwise, shall be solely that of the skier and not that of the operator, provided that such obstruction is properly marked pursuant to the regulations promulgated by the board. No skier shall ski on any ski slope or trail or portion thereof which has been designated closed, nor ski on other than an identified trail, slope or ski area. Any person skiing on other than an open slope or trail within the ski area shall be responsible for any injuries resulting from his action. A skier shall be presumed to know the range of his own ability to ski on any slope, trail or area. A skier shall be presumed to know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots, and shall assume the risk of injury or loss caused by such inherent risks. A skier shall, prior to his entrance onto the slope or trail, other than one designated for cross-country skiing, or embarking on any recreational tramway, have attached on his skis, a strap or other device for the purpose of restraining or preventing a runaway ski. A ski area operator who finds a person in violation of this section, may issue an oral warning to that individual. A person who fails to heed the warning issued by such ski area operator shall forfeit his recreational tramway ticket and recreational tramway use privileges and may be refused issuance of another such ticket to the recreational tramway.
HISTORY: 1978, 455, § 4; 1987, 287.
NOTES: Editorial Note
Acts 1978, Ch. 455, § 4, replaced former §§ 71N and 71Owith §§ 71N through 71S; the former provisions of §§ 71N and 71Oare now contained in §§ 71R and 71S, respectively.
The 1987 amendment, added the fifth and sixth sentences of the second paragraph, relating to the areas of knowledge presumed to be possessed by skiers.
Code of Massachusetts Regulations
Recreational tramway board; adopting administrative regulations, 526 CMR 2.01 et seq.
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Jurisprudence
57A Am Jur 2d, Negligence §§ 258 et seq., 272 et seq.
15 Am Jur Trials 147, Skiing Accident Litigation.
Law Reviews
Dahlstrom, From Recreational Skiing to Criminally Negligent Homicide: A Comparison of United States’ Ski Laws in the Wake of People v. Hall.30 NE J on Crim & Civ Con 209 (Summer, 2004)
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
ALM GL c 71O, insulating ski area operator from liability for collisions between skiers, did not apply where plaintiff/skier was struck from behind by ski patrol member. Tilley v. Brodie Mountain Ski Area, Inc. (1992) 412 Mass 1009, 591 NE2d 202, 1992 Mass LEXIS 273.
ALM GL c 143 § 71O does not exempt ski area operator from liability for injuries caused by its agent. Tilley v. Brodie Mountain Ski Area, Inc. (1992) 412 Mass 1009, 591 NE2d 202, 1992 Mass LEXIS 273.
Summary judgment in favor of ski area operator was appropriate where plaintiff was skier, who slipped while approaching ski lift, since ALM GL c 143 § 71N specifically excludes liability for injury to skier arising out of risks inherent in sport of skiing, and a skier accepts, as a matter of law, risk that he or she might be injured in manner that falls within statutorily specified risks as well as risks contemplated by statutory scheme. Fetzner v. Jiminy Peak, The Mountain Resort (1995) 1995 Mass App Div 55, 1995 Mass App Div LEXIS 30.
Ski area operator was not liable for injuries sustained by skier who, after skiing over clumps of ice on trail, lost control and skied off trail edge into woods, since injuries arose out of risks inherent in skiing, and skier failed to control speed and direction. Spinale v. Pam F., Inc. (1995) 1995 Mass App Div 140, 1995 Mass App Div LEXIS 66.
Massachusetts Ski Safety Act (Act), ALM GL c 143, §§ 71N, 71O, was not intended to include a non-skiing sport like snow tubing; the Act did not relieve a ski operator from a claim for injuries from a snow tubing accident, and the ski operator’s summary judgment motion was denied. Burden v. Amesbury Sports Park, Inc. (2003, Super Ct) 16 Mass L Rep 744, 2003 Mass Super LEXIS 276.
Because snowboarders were included within the definition of “skiers” found in ALM GL c 143, § 71I, under ALM GL c 143, § 71O, a ski area operator and an instructor were not liable to a snowboarder who was injured when she ran into the instructor who was standing at the side of a ski hill. Rich v. Tamarack Ski Corp. (2008) 24 Mass L Rep 448, 2008 Mass. Super. LEXIS 324.
Although a ski area operator had a general duty to operate the ski areas under its control in a reasonably safe manner, pursuant to ALM GL c 143, § 71N(6), because a racing skier’s collision with a lift tower stanchion was off the race course and off the trail, ALM GL c 143, § 71O, placed the duty to avoid collisions on the skier alone. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
In applying ALM GL c 143, § 71O, while it may be unreasonable to presume that a child learning to ski knows the range of his own ability to ski on any slope, trail or area, a similar presumption cannot be applied to collegiate competitive skiers. Brush v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 52204.
In a negligence action brought by an inexperienced skier who was seriously injured when she struck a snow gun while skiing on a low intermediate trail, even though the ski area operator’s trail markings did not violate the Massachusetts Ski Safety Act, ALM GL c 143, § 71N, or contribute to the accident and even though the skier had an obligation under ALM GL c 143, § 71O to avoid collisions with an object so long as the object was not improperly marked, the ski area operator was not entitled to summary judgment on all the negligence claims because there were factual disputes remaining as to whether the snow gun was adequately marked and padded. Peresypa v. Jiminy Peak Mt. Resort, Inc. (2009) 2009 U.S. Dist. LEXIS 84417.
§ 71P. Recreational Tramways — Actions Against Ski Area Operators.
For the purpose of sections seventy-one I to seventy-one R, inclusive, in any action brought against a ski area operator based on negligence, it shall be evidence of due care where the conduct of an operator has conformed with the provisions of this chapter or rules or regulations of the board made pursuant to section seventy-one J.
No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury. Failure to give the foregoing notice shall bar recovery, unless the court finds under the circumstances of the particular case that such ski area operator had actual knowledge of said injury or had reasonable opportunity to learn of said injury within said ninety-day period, or was otherwise not substantially prejudiced by reason of not having been given actual written notice of said injury within said period. In a case where lack of written notice, actual knowledge, or a reasonable opportunity to obtain knowledge of any injury within said ninety-day period is alleged by such ski area operator, the burden of proving substantial prejudice shall be on the operator.
An action to recover for such injury shall be brought within one year of the date of such injury.
HISTORY: 1978, 455, § 4.
NOTES: Cross References
Limitation of actions, generally, ALM GL c 260 § 1 et seq.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Jurisprudence
57A Am Jur 2d, Negligence § 9.
58 Am Jur 2d, Notice §§ 1-4, 27.
15 Am Jur Trials 177, Skiing Accident Litigation.
20 Am Jur Proof of Facts 2d 1, Liability for Skiing Accident.
46 Am Jur Proof of Facts 3d 1, Liability of Skier for Collision with Another Skier.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
CASE NOTES
Word “injury” as used in section does not include death. Grass v. Catamount Dev. Corp. (1983) 390 Mass 551, 457 NE2d 627, 1983 Mass LEXIS 1783.
Legislature did not intend to give ski industry same degree of protection from wrongful death claims as from claims of personal injury. Grass v. Catamount Dev. Corp. (1983) 390 Mass 551, 457 NE2d 627, 1983 Mass LEXIS 1783.
Statute of limitations for action for wrongful death arising out of injury to skier and brought against operator of ski area is GL c 229 § 2, the wrongful death statute, not GL c 143 § 71P. Grass v. Catamount Dev. Corp. (1983) 390 Mass 551, 457 NE2d 627, 1983 Mass LEXIS 1783.
Action by injured skier against ski area operator is governed by one-year limitations of action provision of GL c 143 § 71P, where plaintiff’s theories of recovery were negligence and breach of warranty as well as breach of contract, in renting defective ski equipment. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
One-year limitation period in GL c 143 § 71P is not applicable only to action for violation of duty prescribed by GL c 143 § 71N but applies to all personal injury actions brought by skiers against ski area operator arising out of skiing injuries. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
Legislature concluded that short period for commencement of action against ski area operator was in public interest, because of threat to economic stability of owners and operators of ski areas from personal injury claims. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
One-year limitation period applies to actions brought against ski area operators seeking compensation for injuries sustained while skiing. Atkins v. Jiminy Peak, Inc. (1987) 401 Mass 81, 514 NE2d 850, 1987 Mass LEXIS 1497.
Personal injury action against ski area operators is barred by ALM GL c 143 § 71P, where Massachusetts resident on March 1, 1991 sued New Hampshire ski resort corporation in Massachusetts federal district court for injury suffered at resort on March 2, 1989, because Massachusetts conflict rules call for application of one-year Massachusetts limitations period for actions against ski area operators, instead of New Hampshire’s 2-year statute of limitations. Tidgewell v. Loon Mountain Recreation Corp. (1993, DC Mass) 820 F Supp 630, 1993 US Dist LEXIS 6457.
§ 71Q. Recreational Tramways — Leaving Scene of Skiing Accident.
Any person who is knowingly involved in a skiing accident and who departs from the scene of such accident without leaving personal identification or otherwise clearly identifying himself and obtaining assistance knowing that any other person involved in the accident is in need of medical or other assistance shall be punished by a fine of not less than one hundred dollars.
HISTORY: 1978, 455, § 4.
NOTES: Cross References
Fine and or imprisonment for leaving scene of accident involving automobiles, ALM GL c 90 § 24.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Law Review References
Centner, Equestrian Immunity and Sport Responsibility Statutes: Altering Obligations and Placing Them on Participants. 13 Vill. Sports & Ent. L.J. 37 (2006).
§ 71R. Recreational Tramways — Penalties for Violations of §§ 71K and 71N or of Regulations Promulgated Under § 71J.
Whoever violates any provision of section 71K, 71N, or any rule or regulation made under the provisions of section 71J, shall be punished by a fine of not more than two hundred dollars; provided, however, that any person who operates a recreational tramway, after the license therefor has been suspended or revoked, shall be punished by a fine of one hundred dollars for each day of such operation.
HISTORY: 1968, 565, § 1; 1978, 455, § 4.
NOTES: Editorial Note
This section incorporates the provisions of former § 71N, 25 renumbered and amended by the 1978 act, to include the reference to violations of new § 71N and to increase the fine from $100 to $200 for violations other than operating on a suspended or revoked license, for which the daily fine was increased from $50 to $100.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Law Review References
§ 71S. Recreational Tramways — Applicability of Other Chapters; Jurisdiction of Public Utilities Department.
Recreational tramways shall not be subject to the provisions of chapters one hundred and fifty-nine, one hundred and sixty, one hundred and sixty-one, and one hundred and sixty-two, and shall not be subject to the jurisdiction or control of the department of telecommunications and energy.
HISTORY: 1968, 565, § 1; 1978, 455, § 4; 1997, 164, § 114.
NOTES: Editorial Note
This section contains the provisions of former § 71O, as renumbered by the 1978 act without amendment, except for 2 minor corrective changes.
The 1997 amendment, effective Nov 25, 1997, substituted “telecommunications and energy” for “public utilities”. Section 1 of the amending act provides as follows:
Section 1. It is hereby found and declared that:
(a) electricity service is essential to the health and well-being of all residents of the commonwealth, to public safety, and to orderly and sustainable economic development;
(b) affordable electric service should he available to all consumers on reasonable terms and conditions;
(c) ratepayers and the commonwealth will be best served by moving from (i) the regulatory framework extant on July 1, 1997, in which retail electricity service is provided principally by public utility corporations obligated to provide ultimate consumers in exclusive service territories with reliable electric service at regulated rates, to (ii) a framework under which competitive producers will supply electric power and customers will gain the right to choose their electric power supplier;
(d) the existing regulatory system results in among the highest, residential and commercial electricity rates paid by customers throughout the United States;
(e) such extraordinary high electricity rates have created significant adverse effects on consumers and on the ability of businesses located in the commonwealth to compete in regional, national, and international markets;
(f) the introduction of competition in the electric generation market will encourage innovation, efficiency, and improved service from all market participants, and will enable reductions in the cost of regulatory oversight;
(g) competitive markets in generation should (i) provide electricity suppliers with the incentive to operate efficiently, (ii) open markets for new and improved technologies, (iii) provide electricity buyers and sellers with appropriate price signals, and (iv) improve public confidence in the electric utility industry;
(h) since reliable electric service is of utmost importance to the safety, health, and welfare of the commonwealth’s citizens and economy, electric industry restructuring should enhance the reliability of the interconnected regional transmission systems, and provide strong coordination and enforceable protocols for all users of the power grid;
(i) it is vital that sufficient supplies of electric generation will be available to maintain the reliable service to the citizens and businesses of the commonwealth; and that.
(j) the commonwealth should ensure that universal service are energy conservation policies, activities, and services are appropriately funded and available throughout the commonwealth, and should guard against the exercise of vertical market power and the accumulation of horizontal market power;
(k) long-term rate reductions can be achieved most effectively by increasing competition and enabling broad consumer choice in generation service, thereby allowing market forces to play the principal role in determining the suppliers of generation for all customers;
(l) the primary elements of a more competitive electricity market will be customer choice, preservation and augmentation of consumer protections, full and fair competition in generation, and enhanced environmental protection goals;
(m) the interests of consumers can best be served by an expedient and orderly transition from regulation to competition in the generation sector consisting of the unbundling of prices and services and the functional separation of generation services from transmission and distribution services;
(n) the restructuring of the existing electricity system should not undermine the policy of the commonwealth that electricity bills for low income residents should remain as affordable as possible;
(o) the commonwealth should enter into a compact with the other New England states and New York State, that provides incentives for the public and investor owned electricity utilities located in such states to sell energy to retail customers in Massachusetts which adheres to enforceable standards and protocols and protects the reliability of interconnected regional transmission and distribution systems;
(p) since reliable electricity service depends on conscientious inspection and maintenance of transmission and distribution systems, to continue and enhance the reliability of the delivery of electricity, the regional network and the commonwealth, the department of telecommunications and energy should set stringent and comprehensive inspection, maintenance, repair, replacement, and system service standards;
(q) the transition to expanded customer choice and competitive markets may produce hardships for employees whose working lives were dedicated to their employment;
(r) it is preferable that possible reductions in the workforce directly caused by electricity restructuring be accomplished through collective bargaining negotiations and offers of voluntary severance, retraining, early retirement, outplacement, and related benefits;
(s) the transition to a competitive generation market should be orderly and be completed as expeditiously as possible, should protect electric system reliability, and should provide electricity corporation investors with a reasonable opportunity to recover prudently incurred costs associated with generation-related assets and obligations, within a reasonable and fair deregulation framework consistent with the provisions of this act;
(t) the recovery of such prudently incurred costs shall occur only after such electric companies take all practicable measures to mitigate stranded investments during the transition to a competitive market;
(u) such charges associated with the transition should be collected over a specific period of time on a non-bypassable basis and in a manner that does not result in an increase in rates to customers of electricity corporations;
(v) financial mechanisms should be available that allow electricity corporations to securitize that portion of their transition costs which cannot be divested in the marketplace and which concurrently minimize transition charges to consumers;
(w) the initial benefit of this transition to a competitive market shall result in consumer electricity rate reductions of at least 10 per cent beginning on March 1, 1998, as part of an aggregate rate reduction totaling at least 15 per cent upon the subsequent approval of divestiture and securitization; and.
(x) the general court seeks, through the enactment of this legislation, to establish the parameters upon which a restructuring of the electricity industry shall be based and which reflects the public policy decisions for the commonwealth designed to balance the needs of all participants in the existing and future systems;
Therefore, it is found that it is in the public interest of the commonwealth to promote the property and general welfare of its citizens, a public purpose for which public money may be expended, by restructuring the electricity industry in the commonwealth to foster competition and promote reduced electricity rates through the enactment of the following statutory changes.
Code of Massachusetts Regulations
Ski safety signs for downhill and cross-country skiing, 526 CMR 8.01 et seq.
Law Review References
Georgia Ski Safety Act
Posted: July 22, 2013 Filed under: Georgia, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Georgia, Georgia Ski Safety Act, Recreation, Ski, Ski Resort, Skier, Skier Safety Act, Snowboarder Leave a commentGeorgia Ski Safety Act
OFFICIAL CODE OF GEORGIA ANNOTATED
Copyright 2012 by The State of Georgia
TITLE 43. PROFESSIONS AND BUSINESSES
CHAPTER 43A. SNOW SKIING SAFETY
GO TO GEORGIA STATUTES ARCHIVE DIRECTORY
O.C.G.A. § 43-43A-1 (2012)
§ 43-43A-1. Definitions
As used in this chapter, the term:
(1) “Base area lift” means a passenger tramway to gain access to some other part of the ski area.
(2) “Competitor” means a skier engaging in competition or preparing for competition on a slope or trail designated by the ski area or used by the skier for the purpose of competition or training for competition.
(3) “Conditions of ordinary visibility” means all periods of daylight, and, when visibility is not restricted by weather or other atmospheric conditions, nighttime.
(4) “Inherent dangers and risks of skiing” means categories of danger or risks of skiing, or conditions of the sport of skiing that cause or can cause any injury, death, or property damage, including:
(A) Changing weather conditions;
(B) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;
(C) Surface or subsurface conditions other than those specified in subparagraph (B) of this paragraph, including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;
(D) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;
(E) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and
(F) Collisions with other skiers unless such collisions are caused by the failure on the part of other skiers to conduct themselves in accordance with the provisions of this chapter.
(5) “Passenger” means a person who is lawfully being transported by a passenger tramway.
(6) “Passenger tramway” means any mechanical device used to transport passengers uphill, but such term does not include over-snow vehicles.
(7) “Ski area” means all snow ski slopes or trails and other places under the control of a ski area operator at a defined business location within this state.
(8) “Ski area operator” means an individual, partnership, corporation, or other commercial entity who owns, manages, or otherwise directs or has operational responsibility for any ski area.
(9) “Ski slopes or trails” means those areas open to the skiing public and designated by the ski area operator to be used by a skier. The designation may be generally set forth on trail maps and further designated by signage posted to indicate to the skiing public the intent that the areas be used by the skier for the purpose of skiing. Nothing in this paragraph implies that ski slopes or trails may not be restricted for use at the discretion of the ski area operator.
(10) “Skier” means any person who uses any part of a ski area for the purpose of skiing, snowboard skiing, or sliding or moving on any device other than a motorized device or any person except a passenger who uses any of the facilities of the ski area, including the ski slopes and trails.
(11) “Surface lift” means any passenger tramway that allows the skier’s sliding equipment to stay in contact with the skier and the snow during all of the uphill transportation.
§ 43-43A-2. Use of passenger tramway; passenger rules
(a) No passenger shall use a passenger tramway if the passenger does not have sufficient knowledge, ability, or physical dexterity to negotiate or use the facility safely unless and until the passenger has asked for and received information sufficient to enable the passenger to use the equipment safely. A passenger is required to follow any written, verbal, or other instructions that are given by ski area personnel regarding the use of the passenger tramway.
(b) No passenger shall:
(1) Attempt to enter, use, exit, or leave a passenger tramway except at a location designated by ski area signage for that purpose, except that, in the event of a stoppage of the passenger tramway, a passenger may exit under the supervision and direction of the operator or its representatives, or, in the event of an emergency, a passenger may exit in order to prevent an injury to the passenger or others;
(2) Throw, drop, or release any object from a passenger tramway except as directed by the operator or its representatives;
(3) Act in any manner that may interfere with the proper or safe operation of the passenger tramway or cause any risk, harm, or injury to any person;
(4) Place in an uphill track of any surface lift any object that may cause damage to property or injury to any person;
(5) Use or attempt to use any passenger tramway marked as closed; or
(6) Disobey any instructions posted in accordance with this chapter or any verbal or other instructions of the ski area operator or its lawful designee regarding the use of passenger tramways.
§ 43-43A-3. Sign system; inspection; explanation of signs and symbols; warning signs; degree of difficulty signs
(a) Each ski area operator shall maintain a sign system with information for the instruction of passengers and skiers. Signs must be in English and visible in conditions of ordinary visibility and, where applicable, lighted for nighttime passengers. Without limitation, the signs shall be posted:
(1) At or near the loading point of each passenger tramway, regardless of the type, advising all persons that if they are not familiar with the operation of the device, they must ask the operator of the device for assistance and instructions and that they must understand such instructions before they attempt to use the passenger tramway; and
(2) At or near the boarding area of each lift, setting forth the warning regarding inherent dangers and risks and duties as provided in this chapter.
(b) The ski area operator, before opening a passenger tramway to the public each day, shall inspect the passenger tramway for the presence and visibility of all required signs.
(c) The ski area operator shall post a sign visible to skiers who are proceeding to the uphill loading point of each base area lift which shall depict and explain the following signs and symbols that a skier may encounter at the ski area:
(1) A green circle and the word “easier” designating the ski area’s least difficult trails and slopes;
(2) A blue square and the words “more difficult” designating the ski area’s trails and slopes that have a degree of difficulty that lies between the least difficult and most difficult trails and slopes;
(3) A black diamond and the words “most difficult” designating the ski area’s most difficult trails and slopes;
(4) Two black diamonds and the words “most difficult” designating a slope or trail which meets the description of “most difficult” but which is particularly challenging; and
(5) Crossed poles or other images clearly indicating that a trail or slope is closed and may not be used by skiers.
(d) If applicable, a warning sign shall be placed at or near the loading point of a passenger tramway indicating that it provides access to only “most difficult” or “more difficult” slopes or trails.
(e) The ski area operator shall place a sign at or near the beginning of each trail or slope indicating the relative degree of difficulty of that particular trail or slope.
§ 43-43A-4. Warning notice
(a) The ski area operator shall post and maintain signs that contain the following warning notice:
“WARNING: Under Georgia law, every skier accepts the risk of any injury or death and damage to property resulting from any of the inherent dangers or risks of skiing. The inherent dangers or risks of skiing, or conditions of the sport of skiing that cause or can cause injury, death, or property damage, include:
(1) Changing weather conditions;
(2) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;
(3) Surface or subsurface conditions other than those specified in paragraph (2), including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;
(4) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;
(5) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and
(6) Collisions with other skiers.”
(b) A warning sign as described in subsection (a) of this Code section shall be placed:
(1) At the ski area in the location where lift tickets or ski school lessons are sold;
(2) In the vicinity of the uphill loading point of each base area lift; and
(3) At such other places as the ski area operator may select.
(c) Each sign required by subsection (a) of this Code section shall be no smaller than 3 feet by 3 feet and shall be white or yellow with black and red letters as specified in this subsection. The word “WARNING” shall appear on the sign in red letters. The warning notice specified in subsection (a) of this Code section shall appear on the sign in black letters with each letter being a minimum of one inch in height.
(d) Every passenger tramway ticket sold may contain the warning notice specified in subsection (a) of this Code section.
§ 43-43A-6. Revocation of skiing privileges
Each ski area operator, upon finding a person skiing in violation of any posted regulations governing skiing conduct, may revoke that person’s skiing privileges. This Code section shall not in any way be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or other skiers’ careless or reckless behavior, including any skier’s violation of any duties set forth in this chapter.
§ 43-43A-7. Duties and responsibilities of each skier; assumption of risk
Any other provision of law to the contrary notwithstanding:
(1) Each individual skier has the responsibility for knowing the range of his or her own ability to negotiate any ski slope or trail or any portion thereof and must ski within the limits of his or her ability. Each skier expressly accepts and assumes the risk of any injury or death or damage to property resulting from any of the inherent dangers and risks of skiing, as set forth in this chapter; provided, however, that injuries sustained in a collision with another skier are not an inherent risk of the sport for purposes of this Code section;
(2) Each skier has the duty to maintain control of his or her speed and course at all times and to maintain a proper lookout so as to be able to avoid other skiers and objects, natural or manmade. The skier shall have the primary duty to avoid colliding with any persons or objects below him or her on the trail;
(3) No skier shall ski on a ski slope or trail that has been posted as closed in accordance with the provisions of this chapter;
(4) Each skier shall stay clear of all snow grooming or snow making equipment, vehicles, lift towers, signs, and any other equipment at the ski area;
(5) Each skier shall obey all posted information, warnings, and requirements and shall refrain from acting in any manner that might cause or contribute to the injury of the skier or any other person. Each skier shall be charged with having seen and understood all information posted as required or permitted in this chapter. Each skier shall locate and ascertain the meaning of all signs posted in accordance with this chapter;
(6) Each sliding device used by a skier shall be equipped with a strap or other device designed to help reduce the risk of any runaway equipment should it become unattached from the skier;
(7) No skier shall cross the uphill track of any surface lift device except at locations designated by the operator, nor shall any person place any object in the uphill track of such a device;
(8) Before beginning to ski from a stationary position, or before entering a ski slope or trail, the skier shall have the duty of yielding to moving skiers already using the slope or trail;
(9) No skier shall stop where he or she obstructs a trail or is not visible from higher on the slope or trail; and
(10) No skier shall board or use or attempt to board or use any passenger tramway of any type or use any ski slope or trail while that skier’s ability to do so is impaired by alcohol, drugs, or any controlled substance.
Connecticut Ski Safety Act
Posted: July 22, 2013 Filed under: Connecticut, Ski Area | Tags: Connecticut, Connecticut Ski Safety Act, ski area, Ski lift, Ski Resort, Ski Safety Act, Skier, skiing, Snowboarder Leave a commentConnecticut Skier Safety Act
Sec. 29-201. (Formerly Sec. 19-418a). Definitions. 1
Sec. 29-202. (Formerly Sec. 19-418b). Requirements for passenger tramways in use. 3
Sec. 29-203. (Formerly Sec. 19-418c). Regulations, standards. 4
Sec. 29-204. (Formerly Sec. 19-418d). Plans and specifications, submission, fee. Approval. Final inspection. 4
Sec. 29-205. (Formerly Sec. 19-418e). Registration of each passenger tramway required. 5
Sec. 29-206. (Formerly Sec. 19-418f). Operating certificate, inspections, fees. 5
Sec. 29-207. (Formerly Sec. 19-418g). Order to discontinue operation. Permission for resumption. 6
Sec. 29-208. (Formerly Sec. 19-418h). Complaints. 6
Sec. 29-209. (Formerly Sec. 19-418i). Judicial review of commissioner’s decisions. 7
Sec. 29-210. (Formerly Sec. 19-418j). Penalties. 7
Sec. 29-211. (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area. 8
Sec. 29-212. (Formerly Sec. 19-418l). Assumption of risk of injury caused by hazards inherent in the sport of skiing. 10
Sec. 29-213. (Formerly Sec. 19-418m). Prohibited conduct by skiers. 18
Sec. 29-214. (Formerly Sec. 19-418n). Special defense to civil action against operator by skier. (Repealed) 19
Secs. 29-215 to 29-220. [Reserved] 19
Title 29 Public Safety and State Police
Chapter 538a Passenger Tramways
Conn. Gen. Stat. § 29-201 (2014)
Sec. 29-201. (Formerly Sec. 19-418a). Definitions.
As used in this chapter, unless the context clearly indicates otherwise:
(1) “Passenger tramway” means a device used to transport passengers in cars on tracks or suspended in the air, or uphill on skis, by the use of steel cables, chains or belts or by ropes, and usually supported by trestles or towers with one or more spans, but shall not include any such device not available for public use and not subject to a fee for use of same. The term “passenger tramway” includes the following: (A) Two-car aerial passenger tramways, which are devices used to transport passengers in two open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices; (B) multicar aerial passenger tramways, which are devices used to transport passengers in several open or enclosed cars attached to, and suspended from, a moving wire rope, or attached to a moving wire rope and supported on a standing wire rope, or similar devices; (C) skimobiles, which are devices in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices; (D) chair lifts, which are devices which carry passengers 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, or similar devices; (E) J bars, T bars, platter pulls and similar types of devices, which are means of transportation that 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; and (F) rope tows, which are devices that pull the skiers riding on skis as the skier grasps the rope manually, or similar devices.
(2) “Operator” means a person who owns or controls the operation of a passenger tramway or ski area. An operator of a passenger tramway shall be deemed not to be operating a common carrier.
(3) “Department” means the Department of Administrative Services.
(4) “Commissioner” means the Commissioner of Administrative Services.
(5) “Skier” includes the following: (A) A person utilizing the ski area under control of the operator for the purpose of skiing, whether or not he or she is utilizing a passenger tramway; and (B) a person utilizing the passenger tramway whether or not such person is a skier, including riders on a passenger tramway operating during the nonskiing season.
(6) “Restraint device” means a restraining bar on a passenger tramway, as defined in subparagraph (D) of subdivision (1) of this section, that does not yield to forward pressure by a skier.
Sec. 19-418c transferred to Sec. 29-203 in 1983.
Sec. 29-204. (Formerly Sec. 19-418d). Plans and specifications, submission, fee. Approval. Final inspection.
No new passenger tramway shall be erected or installed and no passenger tramway shall be relocated or altered until detailed plans and specifications of the proposed construction or other work have been submitted in duplicate to the department for approval. A fee of two hundred dollars payable to the Department of Administrative Services shall accompany each such proposal. Notice that such plans are approved or disapproved shall be given within a reasonable time, and final inspection of the passenger tramway, when installed, relocated or altered, shall be made before final approval for operating is given by the department.
Sec. 29-206. (Formerly Sec. 19-418f). Operating certificate, inspections, fees.
The department shall enforce the regulations adopted pursuant to section 29-203, and shall inspect the construction, operation and maintenance of passenger tramways to determine whether such regulations have been complied with by the operators. Each passenger tramway shall be thoroughly inspected by a qualified inspector approved by the department at least once every twelve months. More frequent inspections of any passenger tramway may be made if the condition thereof indicates that additional inspections are necessary or desirable. As soon as the department inspects and approves any passenger tramway as being fit for operation, it shall issue to the operator, upon receipt of a fee of two hundred dollars, a certificate of operation with such conditions and limitations as the commissioner shall prescribe. Such certificate shall be valid for twelve months and shall be renewed yearly, if the department approves the passenger tramway, upon payment of a renewal fee of one hundred dollars. No passenger tramway may be operated without such operating certificate.
Sec. 29-207. (Formerly Sec. 19-418g). Order to discontinue operation. Permission for resumption.
If any passenger tramway is found to be, in the judgment of the department, dangerous to public safety or is being operated without the operating certificate required in section 29-204 or is being operated in violation of any regulation adopted under this chapter, the department may require the operator of such passenger tramway to discontinue its operation forthwith. When a passenger tramway has been placed out of service pursuant to this section, the operator of such tramway shall not again operate such tramway until repairs have been made, an operating certificate has been obtained, or the violation is discontinued and permission given by the commissioner or his authorized agent to resume operation of such tramway.
Sec. 29-208. (Formerly Sec. 19-418h). Complaints.
Any person may make a written complaint to the commissioner setting forth any alleged violation of this chapter or of any regulation promulgated under the authority of this chapter, or setting forth any condition in a passenger tramway which is alleged to endanger the safety of the public.
Sec. 29-209. (Formerly Sec. 19-418i). Judicial review of commissioner’s decisions.
Any person aggrieved by any decision or order of the commissioner or department under the provisions of this chapter may appeal therefrom in accordance with the provisions of section 4-183, except venue for such appeal shall be in the judicial district wherein such passenger tramway is situated.
Sec. 29-210. (Formerly Sec. 19-418j). Penalties.
Any person who violates any of the provisions of this chapter or any of the regulations adopted hereunder shall, for the first offense, be fined not less than twenty-five dollars or more than one hundred dollars, and for each subsequent offense, shall be guilty of a class C misdemeanor.
Sec. 29-211. (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.
In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to: (1) Conspicuously marking all trail maintenance vehicles and furnishing the vehicles with flashing or rotating lights which shall be operated whenever the vehicles are working or moving within the skiing area; (2) conspicuously marking the entrance to each trail or slope with a symbol, adopted or approved by the National Ski Areas Association, which identifies the relative degree of difficulty of such trail or slope or warns that such trail or slope is closed; (3) ensuring that any lift tower that is located on a trail or slope is padded or otherwise protected; (4) maintaining one or more trail boards, at prominent locations within the ski area, displaying such area’s network of ski trails and slopes, designating each trail or slope in the same manner as provided in subdivision (2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act; (5) in the event maintenance personnel or equipment are being employed on any trail or slope during the hours at which such trail or slope is open to the public, conspicuously posting notice thereof at the entrance to such trail or slope; (6) conspicuously marking trail or slope intersections; (7) ensuring that passenger tramways, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, are equipped with restraint devices; (8) at the entrance of a passenger tramway, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, conspicuously posting instructions regarding the proper use of a restraint device on such passenger tramway and notice that the use of a restraint device on such passenger tramway is required by section 29-213, as amended by this act; and (9) ensuring that any hydrant, snow-making equipment and pipes that are located within the borders of a designated slope, trail or area that is approved and open for skiing by the operator and regularly groomed as part of the operator’s normal maintenance activities are padded or marked by portable fencing or a similar device.
Sec. 29-212. (Formerly Sec. 19-418l). Assumption of risk of injury caused by hazards inherent in the sport of skiing.
(a) For the purposes of this section:
(1) “Skier” includes any person who is using a ski area for the purpose of skiing or who is on the skiable terrain of a ski area as a spectator or otherwise, but does not include (A) any person using a snow tube provided by a ski area operator, and (B) any person who is a spectator while in a designated spectator area during any event;
(2) “Skiing” means sliding downhill or jumping on snow or ice using skis, a snowboard, snow blades, a snowbike, a sit-ski or any other device that is controllable by its edges on snow or ice or is for the purpose of utilizing any skiable terrain, but does not include snow tubing operations provided by a ski area operator; and
(3) “Ski area operator” means a person who owns or controls the operation of a ski area and such person’s agents and employees.
(b) Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to: (1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (2) of section 29-211, as amended by this act, or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.
(c) The provisions of this section shall not apply in any case in which it is determined that a claimant’s injury was not caused by a hazard inherent in the sport of skiing.
Sec. 29-213. (Formerly Sec. 19-418m). Prohibited conduct by skiers.
No skier shall: (1) Intentionally drop, throw or expel any object from a passenger tramway; (2) do any act which shall interfere with the running or operation of a passenger tramway; (3) use a passenger tramway without the permission of the operator; (4) place any object in the skiing area or on the uphill track of a passenger tramway which may cause a skier to fall; (5) cross the track of a J bar lift, T bar lift, platter pull or similar device or a rope tow, except at a designated location; (6) depart from the scene of a skiing accident when involved in the accident without leaving personal identification, including name and address, or before notifying the proper authorities and obtaining assistance when such skier knows that any other skier involved in the accident is in need of medical or other assistance; (7) fail to wear retention straps or other devices used to prevent runaway skis; or (8) fail to close the restraint device except when embarking and disembarking the passenger tramway, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act.
Sec. 29-214. (Formerly Sec. 19-418n). Special defense to civil action against operator by skier. (Repealed)
Section 29-214 is repealed, effective October 1, 2005.
Arizona Ski Safety Statutes
Posted: July 22, 2013 Filed under: Arizona, Ski Area, Skiing / Snow Boarding | Tags: Arizona, Outdoors, Recreation, Resorts, ski area, Skier, Skier Safety Act, skiing, Snowboarder Leave a commentArizona Ski Safety Statutes
ARIZONA REVISED STATUTES
TITLE 5. Amusements and Sports
Chapter 7. Skiing
Article 1. General Provisions
Go to the Arizona Code Archive Directory
A.R.S. § 5-701 (2012)
§ 5-701. Definitions
In this chapter, unless the context otherwise requires:
1. “Base area lift” means a passenger tramway that skiers ordinarily use without first using another passenger tramway.
2. “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.
3. “Competitor” means a skier actually engaged in competition or in practice for competition with the permission of a ski area operator on any slope or trail or portion of any slope or trail designated for competition by the ski area operator.
4. “Conditions of ordinary visibility” means daylight and, if applicable, nighttime in nonprecipitating weather.
5. “Inherent dangers and risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator. Inherent dangers and risks of skiing include:
(a) Changing weather conditions.
(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.
(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.
(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.
(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.
(f) Collisions with other skiers.
(g) The failure of skiers to ski within their own abilities.
6. “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, belts or ropes, usually supported by trestles or towers with one or more spans.
7. “Rope tow” means a mode of transportation that pulls a skier riding on skis as the skier grasps the rope with the skier’s hands.
8. “Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state.
9. “Ski area operator” means any corporation, company, partnership, firm, association or other commercial entity, including a natural person, and its employees, agents, members, successors in interest, affiliates and assigns that have responsibility for the operations of a ski area.
10. “Ski Slopes and Trails” means those areas designated by a ski area operator for use by skiers for any of the purposes listed in paragraph 11.
11. “Skier” means a person using a ski area for the purpose of skiing or sliding downhill on snow or ice on skis, a toboggan, sled, tube, skibob or snowboard or any other device, using any of the facilities of a ski area, including ski slopes and trails, or observing any activities in a ski area as a sightseer or visitor.
12. “Surface lift” means a mode of transportation that pulls skiers riding on skis by means of attachment to an overhead cable supported by trestles or towers. Surface lift includes a J-bar, a T-bar, a platter pull and any similar device.
History: Last year in which legislation affected this section: 1997
§ 5-702. Posting passenger information signs
A. A ski area operator shall maintain a sign system with concise, simple and pertinent information for the protection and instruction of people on a passenger tramway.
B. A ski area operator shall prominently display signs that are readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime passengers, as follows:
1. At or near the loading point of each passenger tramway, rope tow and surface lift advising that any person not familiar with the operation of the tramway, rope tow or surface lift should ask ski area personnel for assistance and instruction.
2. In a conspicuous place at the loading area of each two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car.
3. In the interior of each car in a two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car and that gives instructions for procedures in the case of emergencies.
4. At all chair lifts stating the following:
(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (c) of this paragraph.
(b) “Keep ski tips up” or “keep tips up”, which shall be posted ahead of any point where skis may come in contact with a platform or the snow surface while a skier is seated in the chair lift.
(c) “Prepare to unload”, which shall be posted at least fifty feet ahead of the unloading area.
(d) “Remove pole straps from wrists”, which shall be posted where applicable.
(e) “Stop gate”, which shall be posted where applicable.
(f) “Unload here”, which shall be posted at the point designated for unloading.
5. At all rope tows and surface lifts stating the following:
(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (b) of this paragraph.
(b) “Prepare to unload”, which shall be posted at least fifty feet ahead of each unloading area.
(c) “Remove pole straps from wrists”, which shall be posted where applicable.
(d) “Safety gate”, “stay in tracks” or “stop gate”, which shall be posted where applicable.
(e) “Unload here”, which shall be posted at the point designated for unloading or where applicable.
C. At the operator’s discretion a ski area operator may post additional signs not required by subsection B.
D. Before opening a passenger tramway to the public each day, a ski area operator shall inspect the tramway for the presence of the signs required by subsection B or that are posted pursuant to subsection C.
E. The extent of the responsibility of a ski area operator under this section is to post and maintain the signs required by subsection B and to maintain any signs posted pursuant to subsection C. It is a rebuttable presumption that all passengers and skiers saw and understood the signs if evidence exists that the signs required by subsection B or that are posted pursuant to subsection C were posted and the signs were maintained.
History: Last year in which legislation affected this section: 1997
§ 5-703. Posting ski information signs
A. A ski area operator shall maintain a sign and marking system with concise, simple and pertinent information for the protection and instruction of skiers. The signs required by this section shall be readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime skiers.
B. A ski area operator shall place a sign that depicts and explains signs and symbols that skiers may encounter in the ski area in a position where all skiers who are proceeding to the uphill loading point of each base area lift will see the sign. The sign shall depict and explain at least the following signs and symbols:
1. A green circle and the word “easier”, which designates the least difficult ski slopes and trails of the ski area.
2. A blue square and the words “more difficult”, which designates the ski slopes and trails of the ski area that have a degree of difficulty between the least difficult and most difficult slopes and trails.
3. A black diamond and the words “most difficult”, which designates the most difficult ski slopes and trails of the ski area.
4. A figure in the shape of a skier with a band running diagonally from corner to corner of the sign with the word “closed” printed beneath the emblem.
C. If applicable, a ski area operator shall place a sign at or near the loading point of a passenger tramway that states one of the following:
1. If the tramway transports passengers only to the more difficult or most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘more difficult’ (blue square emblem) and ‘most difficult’ (black diamond emblem) slopes and trails only.”.
2. If the tramway transports passengers only to the most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘most difficult’ (black diamond emblem) slopes and trails only.”.
D. If a ski area operator closes a ski slope or trail or a portion of a ski slope or trail to the public, the operator shall place a sign notifying skiers that the slope or trail or portion of the slope or trail is closed at each identified entrance to the slope or trail or closed portion of the slope or trail. In lieu of placing a sign at each identified entrance, the ski area operator may close off the entrance with rope or fences.
E. A ski area operator shall place a sign at or near the beginning of each ski slope or trail that contains the appropriate symbol of the relative degree of difficulty of that slope or trail as set forth in subsection B. The requirements of this subsection do not apply to a ski slope or trail that is designated “easier” if a skier may substantially view the slope or trail in its entirety before beginning to ski the slope or trail.
F. A ski area operator shall mark the ski area boundaries that are designated on the trail map.
G. A ski area operator shall mark all ski lift tickets and season passes that the operator sells or makes available to skiers with the following in clearly readable print:
WARNING: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions, existing and changing snow surface conditions, surface or subsurface conditions, whether marked or unmarked, collisions with natural or man-made objects, whether marked or unmarked and the failure of skiers to ski within their own abilities.
H. A ski area operator shall post and maintain signs where ski lift tickets and ski school lessons are sold and in a location that is clearly visible to skiers who are proceeding to the uphill loading point of each base area lift that state the following in clearly readable print:
WARNING—IMPORTANT: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing. Some of these risks are listed on your lift ticket or season pass. Please review your ticket or pass and ask the ski area personnel for more information.
History: Last year in which legislation affected this section: 1997
§ 5-704. Additional duties of ski area operators
A. If maintenance equipment is being used to maintain or groom any ski slope or trail that a ski area operator has not designated as closed pursuant to section 5-703, subsection D, the ski area operator shall place a conspicuous notice at or near the beginning of the slope or trail and at any entrance points to the slope or trail that notifies skiers about the presence of the equipment.
B. All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following:
1. One lighted head lamp.
2. One lighted red tail lamp.
3. A red or orange flag that is at least forty square inches in size and that is mounted at least five feet above the bottom of the tracks.
C. A ski area operator has no duties to any skier who skis beyond the designated boundaries of the ski area.
History: Last year in which legislation affected this section: 1997
§ 5-705. Duties of skiers in any action against the ski area operator
In any civil action brought by a skier against a ski area operator, the duties of a skier shall be as follows:
1. At all times a skier has the sole responsibility to know the range of the skier’s own ability to negotiate a ski slope or trail and to ski within the limits of that ability. A skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing.
2. Before using a chair lift, passenger tramway, rope tow or surface lift, a skier shall have the knowledge and ability to safely load, ride and unload from the device.
3. A skier shall maintain control of the skier’s speed and course at all times when skiing and shall maintain a proper lookout to enable the skier to avoid collisions with other skiers and with natural and man-made objects, whether marked or unmarked.
4. A skier shall avoid snow maintenance and grooming equipment, vehicles, lift towers, signs and other equipment located on ski slopes and trails.
5. A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property. A skier is presumed to have seen and understood all signs and notices posted pursuant to sections 5-702, 5-703 and 5-704. Under conditions of decreased visibility, the duty rests on the skier to locate and ascertain the meaning of all the signs and notices.
6. A skier shall only use skis, snowboards and other equipment that have been equipped with a functional strap or other device designed to reduce the risk of runaway equipment.
7. A skier shall not ski on a ski slope or trail or a portion of a ski slope or trail that a ski area operator has designated as closed pursuant to section 5-703, subsection D.
8. A skier shall not begin to ski from a stationary position or enter a ski slope or trail from the side unless the skier is able to avoid colliding with moving skiers already on the ski slope or trail.
9. A skier shall not cross the uphill track or place any object in the uphill track of a rope tow or surface lift except at locations that have been designated for crossing by a ski area operator.
10. A skier shall not move uphill on any passenger tramway or use any ski slope or trail while the skier’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug.
11. A skier involved in a collision with another skier that results in an injury shall not leave the vicinity of the collision before giving the skier’s name and current address to an employee of the ski area operator or a member of a paid or voluntary ski patrol. This paragraph does not prohibit a skier from leaving the scene of a collision to secure first aid for a person who is injured in the collision. If a skier leaves the scene of a collision to secure first aid, the skier shall leave the skier’s name and current address as required by this paragraph after securing the first aid.
12. A skier shall not knowingly enter the public or private lands of an adjoining ski area if the owner of that land has closed that land to skiers and the landowner or the ski area operator has designated the adjoining land as closed.
History: Last year in which legislation affected this section: 1997
§ 5-706. Release of liability
In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.
History: Last year in which legislation affected this section: 1997
§ 5-707. Competition
A. Before the beginning of any competition, a ski area operator shall allow any competitor a reasonable visual inspection of the course or area where the competition is to be held.
B. A competitor accepts the risk of all course conditions, including weather and snow conditions, course construction or layout and obstacles that a visual inspection immediately before the run could have revealed.
C. In any action brought by a competitor against any ski area operator, if the ski area operator proves that the participant in the competition signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.
HISTORY: Last year in which legislation affected this section: 1997
News May 27, 2013
Posted: May 31, 2013 Filed under: Climbing, Cycling, Mountaineering, Paddlesports, Ski Area, Skiing / Snow Boarding | Tags: Alabama, Arapahoe Basin, California, Cycling, Kenai Peninsula, MISSISSIPPI, Mountaineering, Nebraska, Paddlesports, Six Mile Creek, skiing, YMCA Leave a commentRundown of weekly news that might be of interest!
Legal
The age that minors become adults.
I am constantly writing about the different legal issues of minors, here you can check on what that means for your state.
The age when a minor becomes an adult is currently 18 in 47 states. Alabama and Nebraska state law says an adult is someone who is 19 or older and Mississippi an adult is 21 or older.
There are exceptions for all the laws on minority in each state. A minor can become an adult if they marry, if they are emancipated or by special statutory exceptions.
Against the law now for kids to not pay attention?
Parents sue because kids were playing. Group of kids on a YMCA outing to a miniature golf course were playing around. One kid hit another in the mouth with a golf club and injured the girl. The parents are suing for inadequate supervision.
How many adults would you have to have to keep kids from playing around? 10 kids, 20 adults? The only result of these suits is kids are not going to be taken care of by adults except their parents.
Commercial whitewater fatality on the Kenai Peninsula‘s Six Mile Creek.
Skiing
Vail just got bigger!
Vail resorts just signed a 50 year lease to run The Canyons in Utah. This will make the Vail Season pretty amazing. Nine resorts (the PR forgot about #A-Basin) will be available to season pass holders in three states: CO, UT and CA.
Is resort a fake? Town is
New 23 lift resort has been approved in #BC Canada. Approval was granted by a town council of a town that does not exist…..
Paddlesports
Rituals v. Habits
Great article about how commercial boatman, sometimes pick up habits that become rituals in the Grand Canyon.
If you can call water flowing between concrete walls on a concrete floor a river……
The Los Angeles River is now open to the public again. Or at least 2.5 miles of it.
Training
Future Career or future disability
Training kids too hard to early does not create great athletic prodigies, only injuries.
#Nike has stopped its support for #LiveStrong.
Mountaineering
Climb meaning sitting in you easy chair with a beer
New iOs App allows you to climb Mtn Everest.
One way to get down
Video of a base jump? Paraglide off Mt. Everest
Overachievers!
Not satisfied to climb Mt #Everest once, David Liano Gonzalez climbed it twice, in the same season, once from the South Side (Nepalese) and once from the North Side (Chinese).
It’s still climbing….right?
Companies are considering putting a ladder on the Hilliary Step on Mt. Everest. There is already a ladder on the North side.
Nepal demanding payment for summit broadcast
There are actually rules for climbing Mt. #Everest. One of those is you cannot #broadcast from sacred areas. The summit is a sacred area. Now Nepal wants paid for a broadcast.
OR Business
Things change
#Nike has stopped its support for #LiveStrong.
OR Life
Animals are amazing
Video of amazing ways that animals defend themselves.
Oh, I’m a survivor
What happens after 400 years under a #glacier and the glacier retreats? Well if you are a #Moss you start to grow again.
This is just so wrong
10 Apps for Enjoying the Great Outdoors
Environment
With Glaciers retreating the mountains are coming down also.
Cycling
Infographic for cycling pre-ride checklist.
Mind the Ride
A bike riding group, Denver Cruisers (http://rec-law.us/17t1bOD) which rides every Wednesday night around downtown Denver has created a bicycle awareness campaign.
The campaign is pretty stark, very good and great for a group just not to promote themselves.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2013 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
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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2012-2013 In bound ski/board fatalities
Posted: May 15, 2013 Filed under: Avalanche, California, Colorado, Michigan, Ski Area, Skiing / Snow Boarding | Tags: Alanson Michigan, alpine Meadwos, Aspen Mountain, Auburn California, Boyne Highlands Resort, Breckenridge, Copper Mountain, Donner Ski Ranch, helmet, Houston, Keystone Ski Resort, Mammoth Lakes, Pagosa Springs Colorado, Rockville, Rockville Maryland, Ski, Ski Patrol, ski season, Snowboard, Snowmass, Sports, Squaw Valley, Squaw Valley Ski Resort, Sun Valley ski resort, Vail, Winter sport, winter sports 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.
Several Corrections have been made to items reported earlier.
If this information is incorrect or incomplete please let me know. This is up to date as of March 28, 2013. Thanks.
Skiing and Snowboarding are still safer than your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks and to study.
2012 – 2013 Ski Season Deaths
Blue is a death of an employee while working
| # | Date | State | Resort | Where | How | Ski / Board | Age | Sex | Hometown | Helmet | Ref | Ref |
| 1 | 12/2 | MI | Boyne Highlands Resort | Camelot | fell within the slope boundaries and did not collide with any type of obstacle | Boarder | 17 | F | Alanson, MI | http://rec-law.us/11JFVOo | ||
| 2 | 12/21 | CA | Squaw Valley | KT-22 | strike the tree | Skier | 71 | M | Auburn, CA | Yes | http://rec-law.us/10ctrSt | |
| 3 | 12/24 | CA | Donner Ski Ranch | Avalanche | Boarder | 49 | M | Hirschdale, CA | http://rec-law.us/UCaHJz | http://rec-law.us/Sgjsbi | ||
| 4 | 12/24 | CA | Alpine Meadows | Sherwood Bowl | Avalanche | Skier | 53 | M | http://rec-law.us/13eiU72 | http://rec-law.us/VGsqh5 | ||
| 5 | 12/30 | CO | Snowmass | Hanging Valley Headwall | Avalanche, swept over cliff | Skier | 49 | F | Patricia Hileman | http://rec-law.us/RCv6fd | http://rec-law.us/VOCr8H | |
| 6 | 1/4 | CO | Copper Mountain | Vein Glory | Hit Tree | M | Houston, TX | No | http://rec-law.us/RCy03u | http://rec-law.us/VyzVnU | ||
| 7 | 1/9 | CO | Keystone | Frenchman | Hit Tree | Skier | 20 | F | Austin, TX | No | http://rec-law.us/VSGVvz | http://rec-law.us/WGPsjQ |
| 8 | 1/9 | CO | Wolf Creek | Hit Tree | Skier | 70 | M | Pagosa Springs, CO | http://rec-law.us/XVWEj2 | |||
| 9 | 1/19 | MD | Wisp | Squirrel Cage | Hit tree | Skier | 40 | M | Rockville, MD | http://rec-law.us/XPB9wz | http://rec-law.us/UJnfeK | |
| 10 | 1/21 | UT | Park City | Silver King | Hit tree | Skier | 67 | M | NJ | No | http://rec-law.us/YchKpN | http://rec-law.us/Wm6mrQ |
| 11 | 2/3 | CA | Mammoth Lakes | Wipe Out 2 | Fell | Skier | M | http://rec-law.us/14BKzzk | ||||
| 12 | 2/4 | CO | Aspen Mountain | Jackpot run | Collision | Skier | 48 | F | Philadelphia, PA | Yes | http://rec-law.us/YCh1hM | http://rec-law.us/YChb8O |
| 13 | 2/8 | CO | Keystone | Porcupine | Hit Tree | Skier | 27 | M | Palos Hills, IL (Hillman AFB NM) | Yes | http://rec-law.us/XbsYsL | http://rec-law.us/XPtHkJ |
| 14 | 2/10 | CO | Breckenridge | Columbia | Hit Tree | Skier | 45 | M | Reston, VA | Yes | http://rec-law.us/YtRJ3y | http://rec-law.us/Ujx85e |
| 15 | 2/22 | MD | Wisp | Squirrel Cage | Hit Tree | Skier | 38 | M | Upper Arlington, OH | http://rec-law.us/133BO30 | http://rec-law.us/UZfW57 | |
| 16 | 3/2 | WI | Devils Head Ski Resort | Hit Tree | Skier | 30 | M | Madison, WI | http://rec-law.us/13Grw9f | http://rec-law.us/WUwUUw | ||
| 17 | NJ | Mountain Creek | Hit surface | Skier | M | No | ||||||
| 18 | 3/13 | ID | Sun Valley Resort | Roundhouse Lane | Hit Tree | Skier | 38 | F | Hailey, ID | Yes | http://rec-law.us/140BJ0o | |
| 19 | 3/16 | CA | China Peak Mountain Resort | Fell and/or hit stump | Skier | 49 | M | Fresno, CA | Yes | http://rec-law.us/YOYIHa | ||
| 20 | 3/21 | CO | Steamboat Springs Ski Resort | Hit Tree | Skier | 35 | M | http://rec-law.us/105wEOX | ||||
| 21 | 3/22 | CO | Snowmass Ski Area | Coney Glade run & Lunchline trails | Hit Tree | Skier | 42 | M | Kensington, Md | Yes | http://rec-law.us/ZkmHej | http://rec-law.us/13pmmPR |
| 22 | 3/27 | UT | Brighton Ski Area | Found wrapped around tree | Boarder | 26 | M | Sandy, UT | Yes | http://rec-law.us/10m67gi | http://rec-law.us/X0cqY7 | |
| 23 | 3/3 | UT | Deer Valley | Little Bell | Hit Tree | Skier | 33 | M | No | http://rec-law.us/13W2zI7 | http://rec-law.us/16ztlSh | |
| 24 | 4/12 | OR | Mt Hood Meadows | Hit Tree | Skier | 51 | M | Yes | http://rec-law.us/15aIFse |
There is a rumor, unsubstantiated of a fatality at a Colorado Ski Area. Supposedly a skier hit a tree.
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.
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Twitter: RecreationLaw
Facebook: Rec.Law.Now
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Colleges, Officials, and a Ski Area are all defendants in this case.
Posted: March 25, 2013 Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Colorado, Duty of care, Edward Grees, Federation Internationale de Ski, FIS, Giant Slalom, Inc., Jeffrey Pier, Jiminy Peak, Jimmy Peak, Jimmy Peak Mountain Resort, Kelly Brush, Massachusetts, Massachusetts Ski Safety Act, Middlebury College, MSSA, NCAA, Negligence, Oyestein Bakken, Ski, Ski Resort, St. Lawrence University, United States Ski and Snowboard Association, USSA, Williams College, Williams College Outing Club, Williams Winter Carnival Leave a commentBrush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
MA Ski Safety Act and a release prevent the plaintiff’s suit.
As the court said, this is a sad case; the plaintiff was a student ski racer. She hit a lift tower during a race and became a paraplegic. She sued the ski area, Jimmy Peak Mountain Resort, Williams College, its coaches and several other officials of the race.
The race was part of a weekend Williams Winter Carnival. The carnival was at Jimmy Peak and included ski races. The plaintiff examined the Giant Slalom course. She exited the course during a run and struck an unprotected lift tower. The factual issues resolved around whether the tower was supposed to be protected by B-Netting (the red netting you see on the sides of ski races) or padding.
The race was on a homologated hill (a slope that met FIS regulations). The race organizers prepared a plan for the netting on the course which showed the netting in the area where the plaintiff left the course. When the plaintiff left the course, there was no netting to slow her down or stop her.
The plaintiff argued the “plan” was a requirement to run the race as required by FIS. The defendants argued the plan was where safety equipment might need to be necessary. The B-netting was not set up according to the plan.
Summary of the case
The plaintiff claimed the defendant ski area was liable for “…negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).”
The court fist looked at the definition of Negligence and what the plaintiff must prove under Massachusetts law:
To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this damage.
The court reading the MSSA found the act served two “somewhat contradictory purposes “(1), to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety.”
Reading the act the court found the duty that caused the plaintiff’s injuries was on the plaintiff, not the ski area. The lift tower was off the ski trail and therefore, under the MSSA the ski area had no duty to set up netting or pad it. If the netting had been set up voluntarily, then the court found there would still be no liability because negligence in a voluntary act does not create liability under the MSSA.
Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features.
The court then looked at the plaintiff’s claims that the agreements of the college to use the ski area which was enveloped in two contracts created contractual duties that the defendant ski area breached. Under Massachusetts law, a tort can be created from a contractual relationship. (This is a minority view in most states.) However, the court could not find language in the contracts that created a duty to undertake steps to keep the competition safe as possible.
The court found that the defendant ski area had not been negligent and had not violated a duty to the plaintiff and dismissed the defendant Jimmy Peak Ski Area.
The court then looked at the remaining defendants, the colleges and the race officials, most of whom were employees of the colleges. These defendants relied upon the release as their defense. The release was required by the USSA (United States Ski and Snowboard Association) to race in USSA events, which this race was. The release had a venue clause that required Colorado law be applied to interpret the release. Choice of law provisions (jurisdiction and venue clauses) absent substantial Massachusetts public policy reasons are upheld in Massachusetts.
The court then examined the release under Colorado law and found the release to be enforceable. The plaintiff argued the release was ambiguous. The waiver was clear to the signor that signing the release waived all claims against the USSA. The USSA waiver listed every possible person to be protected by the release.
United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.”
Consequently, the waiver protected the remaining defendants. The third party defendants were also released by the waiver because their liability was contingent on the liability of the first party defendants. If the first party defendants were not liable, the third party defendants could not be liable.
The final argument the court reviewed was the claim the actions of the defendants amounted to gross negligence. Under Colorado law a waiver does not protect against gross negligence.
…under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence.
The court defined gross negligence as “Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than willful, wanton and reckless conduct.”
The court found the defendants had not acted in a way that was gross negligence, and no jury could find gross negligence on the part of any defendants.
There is no evidence in the record, and indeed, no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most, there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
So Now What?
The first issue was what was the plan? Actually, a point that was not addressed in the decision which should be addressed here was why was there a plan?
How can you create a plan, call it a safety plan and not execute it 100%? If it just a draft, or if it is just ideas, you better label it that way. You cannot create documents like that, that are not going to come back and fry you.
Paperwork is the easiest way for a plaintiff to find something to prove you did something wrong. If your paperwork says you will do something that you did not do, or not do something that you did, the plaintiff will work hard to connect it to the injury. You set your own standards, defined your duty to the customers and/or guests (future plaintiffs) and then violated, breached those duties you created.
The choice of laws clause, jurisdiction and venue clause, did not work as it normally would have in this case. The case was brought in federal court because there were parties to the suit from two different states (called diversity jurisdiction cases). No one seemed to want to argue the jurisdiction and venue clause in the release should be enforced. That is difficult to do in some diversity jurisdiction cases in federal court; however, it is not impossible. The case would have had the same outcome under Colorado law, whether or not it would have been filed at all in Colorado after being dismissed in Massachusetts is the question.
Another flaw in how the defendants could have provided more protection is there was not a separate release for the event or the race. Between the Williams College Outing Club, the ski area and the college, someone should have required the participants to sign a release for the event. It could have been based on the course, not all possible courses in the US. It could have named the colleges and their employees to provide better protection. It could have been based on the facts and law of Massachusetts.
It is sad when a young woman has her life upended and changed. However, the law is the law. As the court stated:
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
Plaintiff: Kelly Brush
Defendant: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race referee for a race
Plaintiff Claims: negligence or gross negligence, negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).
Defendant Defenses: Massachusetts Ski Safety Act and Release
Holding: For all Defendants
 |
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Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Posted: March 25, 2013 Filed under: Legal Case, Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Eastern Intercollegiate Ski Association, Edward Grees, Federation Internationale de Ski, FIS, Giant Slalom, Inc., Jeffrey Pier, Jiminy Peak, Jimmy Peak, Jimmy Peak Mountain Resort, Kelly Brush, Massachusetts Ski Safety Act, Middlebury College, MSSA, National Collegiate Athletic Association, NCAA, Oyestein Bakken, St. Lawrence University, United States Ski and Snowboard Association, USSA, Williams College, Williams College Outing Club, Williams Winter Carnival Leave a commentTo Read an Analysis of this decision see Colleges, Officials, and a Ski Area are all defendants in this case.
Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Kelly Brush, Plaintiff v. Jiminy Peak Mountain Resort, Inc., Et Al, Defendants and St. Lawrence University, Defendant/Third-Party Plaintiff v. Middlebury College, Et Al, Third-Party Defendants
C.A. No. 07-10244-MAP
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
June 11, 2009, Decided
COUNSEL: [**1] For Jeffrey Pier, ThirdParty Plaintiff: Michael H. Burke, LEAD ATTORNEY, George W. Marion, Bulkley, Richardson & Gelinas, Springfield, MA.
For Barry Bryant, Defendant: John B. Connarton, Jr., LEAD ATTORNEY, Luke R. Conrad, Donovan Hatem, LLP, Boston, MA.
For Williams College, Defendant: William J. Dailey, Jr., Brian H. Sullivan, LEAD ATTORNEYS, Sloane & Walsh, LLP, Boston, MA.
For St. Lawrence University, ThirdParty Plaintiff: Thomas E. Day, Edward J. McDonough, Jr., LEAD ATTORNEY, Flanagan & Cohen, PC, Springfield, MA.
For Kelly Brush, Plaintiff: Walter E. Judge, Jr., LEAD ATTORNEY, Downs, Rachlin & Martin, Burlington, VT; Robert B. Luce, LEAD ATTORNEY, Downs, Rachlin & Martin PLLC, Burlington, VT.
For Williams College, Defendant: Lawrence J. Kenney, Jr., Sloane & Walsh, Boston, MA.
For Forest Carey, ThirdParty Defendant: Gerald F. Lucey, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
For Jiminy Peak Mountain Resort, Inc., Defendant: David B. Mongue, LEAD ATTORNEY, Donovan & O’Connor, LLP, North Adams, MA.
For Middlebury College Middlebury, VT 05753, ThirdParty Defendant: Robert B. Smith, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
JUDGES: MICHAEL A. PONSOR, United States District [**2] Judge.
OPINION BY: MICHAEL A. PONSOR
OPINION
[*143] MEMORANDUM AND ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT
(Dkt. Nos. 135, 137, 138, 139, 140, 143, 157)
PONSOR, D.J.
I. INTRODUCTION
This case stems from a tragic skiing accident that left the plaintiff, Kelly Brush, permanently disabled. The accident occurred during a collegiate ski race on February 18, 2006 when Brush lost control and crashed into a ski lift stanchion just off the trail. In her six-count amended complaint Brush alleges that the severity of her injuries was the result of negligence or gross negligence on the part of the following defendants: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race [**3] referee for a race on the same trail the day before Brush’s accident. Before the court are motions for summary judgment from all of the parties.
Jiminy Peak argues that pursuant to the Massachusetts Ski Safety Act (“MSSA”) it, as the ski area operator, has no liability because Plaintiff’s injuries were caused by her collision with an object off the trail. The other Defendants assert that Plaintiff cannot recover from them because she executed a liability waiver that covered Defendants and their alleged negligence when she registered with the United States Ski and Snowboard Association (“USSA”). The Third-Party Defendants argue that as a matter of law they have no obligation to contribute even if Third-Party Plaintiffs Pier and St. Lawrence are liable to Plaintiff. Plaintiff asks the court to rule that the MSSA does not bar her claims against Jiminy Peak and the USSA liability waiver is not applicable to bar the claims of the other Defendants. Finally she asserts that the facts are sufficient to permit this case to go to trial on a theory of gross negligence, even if the USSA waiver is valid.
For the reasons set forth below, the court will allow all Defendants’ motions for [*144] summary judgment, [**4] deny Plaintiff’s motion, and order entry of judgment for Defendants.
II. BACKGROUND
The facts are largely undisputed. Where disputes exist, the court has viewed the facts in the light most favorable to Plaintiff.
A. The Accident.
Brush was injured while competing in the Williams Winter Carnival, a two-day event at the Jiminy Peak ski area in Hancock, Massachusetts hosted by the Williams College Outing Club in association with the Williams College ski team. The Winter Carnival is part of the regular season of the Eastern Intercollegiate Ski Association (EISA), one conference within the ski program of the National Collegiate Athletic Association (NCAA). The competition was also held under the auspices of the USSA and the FIS, which in the United States operates through the USSA. As a result of the USSA/FIS affiliation, all competitors in the Winter Carnival had to be USSA members, though not all had to be NCAA athletes. The USSA/FIS designation meant that skiers could earn “points” to improve their international, individual standing by competing in the Winter Carnival events.
The particular event during which Plaintiff was injured was the Giant Slalom, which took place on the second day of [**5] the Winter Carnival. This event requires skiers to pass through “gates” set along the trail as they descend the slope as quickly as possible. Skiers are ranked based on their best time through the course and are not penalized for any runs they fail to finish, due for example to a fall. Technological changes in the past decade have increased the sport’s risks. New ski designs allow skiers to reach speeds of forty miles per hour. At the same time it has become harder to predict how skiers will fall if they lose control. Some courses now are set with gates at the edges of the trail to maximize the distance skiers must travel from one side of the trail to another in order to slow skiers down. Persons involved with competitive skiing are aware that technical changes have increased the importance of proper placement of safety equipment during competitions.
Under NCAA and USSA rules, members of the “competition jury” have a responsibility to inspect the layout of a trail prior to its use during a competition. The competition jury for the race during which Brush was injured included the “Chief of the Race,” Defendant Edward Grees, the head ski coach at Williams; the “Chief of the Course,” Defendant [**6] Oyestein Bakken, an assistant ski coach at Williams; the “Race Referee,” Jeffrey Pier, a ski coach at St. Lawrence University; and the “Technical Delegate,” Defendant Barry Bryant. Third-party Defendant Forest Carey, the Middlebury coach, was the “Race Referee” for a race that used the same trail the previous day.
The USSA requires that trails used in competitions be “homologated,” which means that the trail has been confirmed to meet the relevant FIS regulations. The USSA also mandates that trails be prepared in keeping with homologation requirements. The parties disagree about whether all members of the jury were responsible for confirming that the trail was set consistent with the homologation report, but for purposes of this memorandum the court will assume they were. Additionally, there is a dispute as to whether the trail was, in fact, prepared as set out in a homologation report drafted in keeping with FIS requirements. Again, for purposes of its rulings here, the court will [*145] assume that the trail was not prepared as the homologation report contemplated.
Plaintiff asserts that the relevant homologation report required that “B-netting,” a type of netting used to slow errant skiers [**7] before they collide with objects, be placed along the edge of the trail starting uphill from any lift tower and continuing downhill some distance past the lift tower. The homologation report, completed in 2002 by Defendant Grees and an FIS representative for the area where Plaintiff was hurt, included a diagram showing such B-netting. While at least some of the defendants assert the report merely displays safety equipment that might be necessary, rather than the minimal required safety equipment, the court will, again, assume for the current purposes that the report indicated that B-netting should have been installed above and below lift towers. The parties do agree that B-netting was not set up according to the diagram on the day Plaintiff was hurt.
At the time of Plaintiff’s accident there was B-netting along the left edge of the trail, stopping at a point approximately even with the gate where Brush lost control and somewhat uphill from a lift tower. No other netting was placed between the trail and the tower, so that the area directly in front of the tower lacked any protection. In prior years B-netting was placed in accordance with a diagram in the homologation report, extending [**8] past the lift tower above and below.
Not only was there less B-netting on February 18, 2006 than there was in the past, there were no triangular nets set around the lift tower itself. Triangular nets are another available type of safety netting used to deflect a skier from a particular hazard. Additionally, neither the tower nor its support stanchion was equipped with a type of padding known as Willy Bags, though such padding is regularly used in speed events.
After the Giant Slalom course was set, Plaintiff had an opportunity to ski down the slope to assess the course, and she did so. Later, during one of her timed runs, Plaintiff caught an edge of one of her skis and lost control. As a result she left the trail and struck the unprotected lift tower support stanchion. The collision caused life-altering injuries to Plaintiff, including paraplegia.
B. Relevant Agreements.
1. USSA Waiver.
At the time of her accident Plaintiff was a member of the USSA and the FIS. During the summer of 2005 registration forms for both organizations were completed on her behalf. 1 The FIS waiver included language acknowledging the risks of skiing competitively. Additionally, it stated that national or club organizations [**9] in the United States may require a skier to waive any liability claims in order to participate in their activities.
1 The parties agree that Plaintiff’s mother signed the relevant USSA Release and FIS Registration with Plaintiff’s full consent and authorization. They further agree that the weight given to those documents should be the same as it would be if Plaintiff had signed them herself. (Dkt. No. 162, Pl.’s Resp. to Defs.’ Joint Statement of Undisputed Material Facts at 18.)
Those completing the USSA registration form had to sign a clearly-labeled liability release. (Dkt. No. 142, Ex. 9.) Pursuant to that release a USSA member
unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or his/her property, [*146] or to any other person or property, for any loss, damage, expense, or injury (including DEATH), suffered by any person from or in connection with Member’s participation in any Activities in which USSA is involved in any way, due to any cause whatsoever INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.
Id.
As used in the release “USSA” referred to the [**10] United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.” Id. The term “Activities” included “skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics.” Id.
2. Agreements Between Defendants.
The Williams College ski team utilized the Jiminy Peak ski area for its Winter Carnival and for practice sessions pursuant to a written agreement between the parties. (Dkt. No. 158, Tab 18, Jiminy Peak/Williams College Contract.) That five-paragraph agreement gave Williams and members of its community various types of access to the ski area in exchange for a single annual payment. Jiminy Peak agreed to have its mountain manager work with the Williams alpine coach to determine safe conditions for ski team training and to make and groom snow for the trails that were used during the annual winter carnival.
Jiminy Peak and Williams [**11] College were also parties to an Alpine Schedule Agreement with the USSA. Pursuant to that agreement the competition was listed on the USSA’s official schedule; all competitors had to be members of the USSA; competitors, as noted, were able to earn “points;” competition organizers had to agree to allow some non-collegiate USSA members to compete; and members of the competition jury had to be members of USSA. Additionally, the agreement required that facilities “to be used in the actual competition events . . . conform with applicable rules and with requirements of the [Technical Delegate] and competition jury.” (Dkt. No. 158, Tab 8, Alpine Schedule Agreement 2, P 8.) The competition organizer, the Williams College Outing Club, was responsible for “working with” Jiminy Peak, the USSA, and the competition jury to select facilities and ensure that they were prepared in accordance with “such rules or requirements, and homologation or facility approval requirements according to discipline and type of competition.” Id.
III. DISCUSSION
“Summary judgment is appropriate where ‘there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law.'” [**12] Coffin v. Bowater, Inc., 501 F.3d 80, 85 (1st Cir. 2007) (citing Fed. R. Civ. P. 56(c)). “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Group, Inc. [*147] v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
A. Claims Against Jiminy Peak.
Plaintiff asserts three claims against Jiminy Peak: negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III). [HN1] “To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this [**13] damage.” Brown v. United States, 557 F.3fd 1, 3 (1st Cir. 2009) (quoting Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 835 (Mass. 2006)). Jiminy Peak asserts that under the MSSA it did not owe Plaintiff any duty to use reasonable care to prevent her collision with an object off the ski trail. Plaintiff argues that Jiminy Peak had a duty to her pursuant to the MSSA and its agreements with Williams College and the USSA.
1. Statutory Duty.
[HN2] The MSSA serves two somewhat contradictory purposes, (1) to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 27 (Mass. 1996). Pursuant to the MSSA a ski area operator has a general duty to operate the “ski areas under its control in a reasonably safe manner.” Mass. Gen. Laws ch. 143, § 71N(6) (2008).
However, this duty is sharply limited by other provisions of the act. Of particular relevance in this case is that the MSSA places “the duty to avoid any collision with any . . . object on the hill below” solely on the skier, so long as the object was not improperly marked. Id. at § 71O. The MSSA does shift the duty to avoid collisions back to the ski area operator [**14] when the ski operator has not marked the obstruction “pursuant to the regulations promulgated by the [recreational tramway] board” or “as otherwise provided” in the statute. Id.; see also Eipp v. Jiminy Peak, Inc., 154 F. Supp. 2d 110, 116 (D. Mass. 2001) (declining to enter summary judgment for the ski area operator where skier was injured after striking “a snowgun in the middle of a ski trail”). At the time of Plaintiff’s accident the only active regulations, at 526 C.M.R. § 10, did not address signage requirements.
The other requirements established by the MSSA require ski area operators to (1) mark maintenance and snow-making equipment that is in use (Id. at § 71N(1)), (2) mark with flashing lights trail maintenance and emergency vehicles in use in a ski area (Id. at § 71N(2)), and (3) mark the location of snow-making hydrants “within or upon a slope or trail” § 71N(4)).
[HN3] Under the MSSA, skiers are also solely responsible for any injuries resulting from skiing anywhere other than on an open slope or trail. 2 Id. at § 71O; Spinale v. Pam F., Inc., 1995 Mass. App. Div. 140, 142 (Mass. App. Div. 1995) (“[Section] 71O expressly imposes responsibility for injuries sustained while ‘skiing [**15] on other than an open slope or trail within the ski area’ on the skier, and thereby exempts the ski area operator from liability for the [*148] same.”). The ski area operator has no duty to provide netting or padding around obstacles off the trail. Walsh v. Jiminy Peak, Inc., No. 02-11890-MAP, 2005 U.S. Dist. LEXIS 18463 at *12-13 (D. Mass. Aug. 29, 2005). Nor does it assume such a duty by padding some obstacles. Id. Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features. 2005 U.S. Dist. LEXIS 18463 at *16.
2 [HN4] A “[s]ki slope or trail” is limited to the “area designed by the person or organization having operational responsibility for the ski area as herein defined, including a cross-country ski area, for use by the public in furtherance of the sport of skiing . . . .” Mass. Gen. Laws ch. 143, § 71I.
The parties agree that the lift tower stanchion 3 Plaintiff struck was “off the course and off the trail.” (Dkt. No. 162 at 23.) Given these facts, the MSSA placed the duty to avoid collisions on Plaintiff alone. 4
3 Plaintiff [**16] separately argues that Jiminy Peak had a specific duty to protect skiers from collisions with ski lift stanchions pursuant to 526 C.M.R. 10.09(4)(b). That regulation specifies that ski area operators are to fence or barricade any area of the tramway that could cause injury to a person. However, that requirement appears within a section entitled “Protection Against moving parts or Other Hazards and Clearance Envelopes.” Id. at 10.09(4). Given that context, it is clear that this fencing requirement is only intended to keep members of the public from getting too close to moving parts of a tramway system which might cause injury and does not apply to nonmoving elements like stanchions and support towers.
4 Ski area operators’ liability is also limited such that they “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.” Mass. Gen. Laws ch. 143, § 71N(6). The parties disagree about the applicability of this limitation to this case. Jiminy Peak argues that collisions with off-trail objects, regardless of their cause, are a risk inherent in the sport of skiing. Plaintiff notes that the “inherent risks” enumerated [**17] in the statute are natural conditions that can cause a skier to lose control, not dangers that result from such a loss of control. Id. at § 71O (enumerating the “risks inherent in the sport of skiing” as including “variations in terrain, surface or subsurface snow, ice conditions or bare spots”). Plaintiff appears to have the stronger argument that off-trail collisions, though not unexpected, are in a different category than the inherent risks identified in § 71O. As neither party suggests that Plaintiff’s crash resulted from an encounter with a natural condition like those listed in the statute, the limitation on ski area operator liability related to inherent risks of skiing is irrelevant. The determinative fact in this case, undisputed on the record, is that Plaintiff lost control and struck a stationary object, the stanchion, off the trail. The MSSA shields Jiminy Peak from liability in this situation. There is no need for an “inherent risk” analysis.
Plaintiff argues that Jiminy Peak’s duty to her was not fully circumscribed by the MSSA because her injury occurred during the course of a race. Ski racing is certainly dangerous, perhaps more dangerous than ordinary recreational skiing [**18] because speed is pursued sometimes to the limit of a skier’s competence, and beyond. Jiminy Peak undoubtedly was aware of the dangers associated with ski racing and took some steps, together with the race organizers, to try to reduce those dangers. However, no authority suggests that Jiminy Peak or any other ski operator in Massachusetts owes a greater duty to racing skiers than to other, perhaps less experienced, recreational skiers.
Plaintiff asserts that Jiminy Peak assumed a greater duty to racing skiers, similar to the heightened duty one Massachusetts trial court determined ski area operators owed to a minor child enrolled in an instructional program. Sanchez-Souquet v. Jiminy Peak, Inc., 1997 MBAR-094, 1997 Mass. Super. LEXIS 198 (Mass. Super. Ct. 1997). In Sanchez-Souquet, the state court concluded that it was unfair to require “a ski student to ‘assume the risk’ for his injury” [*149] because ski area operators knew that such skiers lacked experience and judgment and were relying on their instructors to keep them safe. 1997 Mass. Super. LEXIS 198 at *9. Plaintiff urges this court to conclude that racing skiers also should be held to a lower standard than regular recreational skiers because, like students [**19] learning to ski, competitive skiers ski at the edge of their ability. Even if the court was persuaded that the court reached the correct outcome in Sanchez-Souquet (a decision the court need not, and does not, reach) it would not be inclined to carve out a further exception for competitive skiers. While it may be unreasonable to presume that a child learning to ski “know[s] the range of his own ability to ski on any slope, trail or area,” a similar presumption cannot be applied to collegiate competitive skiers. Mass. Gen Laws ch. 143, § 71O.
More importantly, [HN5] the MSSA applies to all skiers, a group which includes “any person utilizing the ski area under control of a ski area operator for the purpose of skiing . . . .” Id. at § 71I; Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 56 (Mass. App. Div. 1995) (“The definition of skier in G.L.c. 143 includes any person utilizing the ski area.”). Competitive skiers thus have the same responsibility to avoid collisions with objects off the trail as other skiers. Ski area operators simply have no duty under the statute to prevent the injuries suffered by a skier who collides with an off-course obstacle. Without such a duty, [**20] Jiminy Peak’s alleged negligence cannot give rise to liability. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 28 (Mass. 1996) (“As the defendant had no duty to remedy a statutorily defined unavoidable risk inherent in the sport of skiing, the defendant’s alleged negligence in failing to eliminate the [risk] does not create liability.”).
2. Contractual Duty.
Plaintiff asserts that even if Jiminy Peak did not have a duty to her pursuant to the MSSA or through its voluntary safety efforts, it did have a contractual duty to undertake specific steps to ensure the competition would be as safe as possible. Failing to take those steps, Plaintiff asserts, constituted a breach of a separate, non-statutory duty. Massachusetts recognizes that “a claim in tort may arise from a contractual relationship . . . and may be available to persons who are not parties to the contract.” Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 556 N.E.2d 1009, 1012 (Mass. 1990). However, Jiminy Peak did not obligate itself to provide particular safety measures, such as netting or padding, in either of the two contracts relied on by Plaintiff. Pursuant to its agreement with Williams College, Jiminy Peak agreed to consult [**21] about safe training conditions for Williams skiers and to permit use of several trails for the Winter Carnival competition. Under the Alpine Schedule Agreement, the competition organizers are responsible for “working with” the ski area operator to ensure that ski facilities were prepared in accordance with all USSA rules, regulations, and applicable homologation requirements. The ski area operator, Jiminy Peak, did not itself undertake that responsibility and therefore any failure to ensure that applicable safety requirements were met did not give rise to tort liability.
B. Claims Against Competition Organizers and Officials.
1. The USSA Waiver.
Defendants collectively argue that Plaintiff’s various negligence claims are precluded by the liability waiver executed when her USSA membership was renewed the summer before her accident. Plaintiff [*150] asserts that the waiver does not bar her claims because its language was ambiguous as to the persons and entities it covered. In resolving this question the court applies Colorado law, as urged by Plaintiff and agreed to by Defendants. The waiver includes a choice of law provision selecting Colorado law and [HN6] in the absence of a “substantial Massachusetts [**22] public policy reason,” Massachusetts law honors choice of law provisions in contracts. Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 572, 646 N.E.2d 741, 744 (Mass. 1995).
[HN7] Under Colorado law “[e]xculpatory agreements are disfavored and, therefore, they are strictly construed against the party seeking to limit its liability.” Del Bosco v. United States Ski Ass’n, 839 F. Supp. 1470, 1473 (D. Colo. 1993). Under Colorado law the applicability of a liability waiver is a legal question to be resolved by the court after consideration of four factors: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (citations omitted). Plaintiffs urge the court to rule that the waiver invoked by Defendants is inapplicable under the third and fourth factors.
As to the third factor, Plaintiff argues that the USSA waiver was a contract of adhesion because the USSA’s dominance over amateur ski racing in this country prevented her from being able to negotiate less onerous contract terms with the USSA. [HN8] “Colorado [**23] defines an adhesion contract as ‘generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.'” Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (citing Jones v. Dressel, 623 P.2d 370, 374 (Colo. 1981)).
On the undisputed facts of this case, Plaintiff’s “adhesion” argument must fail, because under Colorado law recreational activities and services are not essential. Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 898 (D. Colo. 1998) (holding that waiver was not fairly entered because skier was skiing “as a part of work, not as a part of recreation”); Bauer, 788 F. Supp. at 475 (enforcing waiver executed as part of ski rental, even though all ski rental outlets used similar waivers, because such services were recreational, not essential). Plaintiff completed the USSA waiver in order to engage in a recreational activity. The nature of the activity is not changed by its competitive nature, its subjective importance in Plaintiff’s life, or the fact that a single entity controlled virtually all opportunities to engage in the recreational activity. But see O’Connor v. United States Fencing Ass’n, 260 F. Supp. 2d 545, 552 (E.D.N.Y. 2003) [**24] (concluding that a liability waiver was not binding under Colorado law because the waiver’s author so controlled the sport of fencing that an athlete wishing to compete had no choice but to agree to the terms in the waiver).
Finally, Plaintiff argues that the waiver did not express the parties’ intentions in clear and unambiguous language. Having reviewed the waiver, the court concludes that the language of the waiver was clear and unambiguous. Clear language indicates that the signer is waiving all claims against the USSA including those based on negligence, as indicated in bold, italic, capital letters. See Jones, 623 P.2d at 378. The waiver defined USSA quite expansively to encompass a host of individuals and groups including all affiliates, volunteers, competition organizers, sponsors, coaches, and representatives. It is clear that the list was meant to encompass any [*151] one involved in running a competition sanctioned by the USSA. Finally, it is undisputed that skiers, including Plaintiff, participating in the Williams Winter Carnival knew the event was sanctioned by the FIS through the USSA because they knew they were competing, in part, for FIS points.
2. Gross Negligence.
Plaintiff [**25] asserts that even if the USSA waiver is valid, she should be able to proceed against these Defendants on a theory of gross negligence. The argument is colorable but ultimately unpersuasive.
It is true that [HN9] under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” Id. at 376. In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence. Barker v. Colorado Region–Sports Car Club, Inc., 35 Colo. App. 73, 532 P.2d 372, 379 (Colo. Ct. App. 1974). In Massachusetts, waivers may only release a defendant from ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997).
Plaintiff has alleged in her complaint that Defendants were grossly negligent. [HN10] Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than [] willful, wanton and reckless conduct.” Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919). Despite [**26] the severity of Plaintiff’s injuries, the conduct alleged by Plaintiff is simple inadvertence. There is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
C. Third-Party Claims.
Having concluded that all Defendants, including the Third-Party Plaintiffs, are entitled to summary judgment, the court necessarily grants Third-Party Defendants’ motion for summary judgment on the third-party contribution claims asserted against them. Any negligence on the part of Forest Carey, whether in his capacity as a race official or as Plaintiff’s coach is expressly covered by the USSA waiver. Even if the court had concluded that the waiver was inapplicable, Third-Party Defendants would be entitled to summary judgment because Carey simply did not breach any duty he owed [**27] to Plaintiff. His role as a race official concluded the day before Plaintiff’s accident. As a competitor on the following day, Plaintiff was outside the group of people likely to be injured by his acts or omissions as a referee. Therefore he had no duty with respect to her safety. See Matteo v. Livingstone, 40 Mass. App. Ct. 658, 666 N.E.2d 1309, 1312 (Mass. App. Ct. 1996) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)). The risk which caused Plaintiff harm, improper safety fencing, was similarly not reasonably foreseeable to Carey in his capacity as her coach. See Moose v. Mass. Inst. of Tech., 43 Mass. App. Ct. 420, 683 N.E.2d 706, 710 (Mass. App. Ct. 1997) (upholding a jury’s finding that a coach was negligent where the risk which caused a student-athlete’s [*152] injury was reasonably foreseeable). Third-party Defendants would thus be entitled to summary judgment even absent the USSA waiver.
IV. CONCLUSION
This is a terribly sad case. A young woman has been tragically, permanently injured. Putting aside considerations of legal liability, somebody connected with the 2006 Winter Carnival should, as a matter of conscience and professionalism, have noticed the unprotected ski tower and made sure that appropriate netting [**28] was installed to provide a greater degree of protection to the competitors.
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
For the reasons set forth above, Defendants’ Motions for Summary Judgment (Dkt. Nos. 135, 137, 138, 139, 140) are hereby ALLOWED, Third-Party Defendants’ Motion for Summary Judgment (Dkt. No. 143) is hereby ALLOWED, and Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 157) is hereby DENIED. The trial scheduled for September 28, 2009 will obviously not go forward.
The Clerk is ordered to enter judgment for Defendants; the case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge
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Misleading article from the Denver Post about CO Ski areas; but also just plain wrong
Posted: March 19, 2013 Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Colorado, Colorado Ski Country, Colorado Ski Country USA, Denver Post, Law, Law Enforcement, National Ski Area Association, National Ski Patrol, NSAA, NSP, Organizations, Resort, ski area, Ski Patrol, Ski Resort 1 CommentI lost a lot of respect for the Denver Post today.
This is my review of an article titled Colorado system for investigating ski accidents raises concerns in the Denver Post Sunday March 17, 2013.
First of all, let’s correct the article from a legal and factual standpoint!
When someone dies or is seriously injured on a Colorado ski slope, it is ski patrollers — not trained police officers, sheriff’s deputies or forest rangers — who document and determine what happened.
This statement is false if you believe it says no one else can investigate. The statement is misleading in that it makes you think no one else investigates major accidents.
Law Enforcement Investigates Possible Crimes.
It is patrollers that investigate on behalf of the ski area. No patroller investigates on behalf of anyone else, nor can they. They have not been licensed, trained nor are they allowed to. If someone else wants to investigate, they can use the powers given to them by contract (US Forest Service) or jurisdiction (Sheriff) and investigate.
Ski Patrollers don’t determine who is at fault; they try to determine what happened. That is all they are trained to do and that is all you want them to do. Volunteers and poorly-paid hard-working men and women are ski patrollers. The have been trained to get injured people off the mountain as best they can.
Any law enforcement agency with jurisdiction could investigate if they wanted to. They do not need permission; they just access the land and go investigate.
The reason why most law enforcement agencies do not investigate was set out in the article, just not recognized as the answer to their own question the article asked.
Many times, those agencies — responsible for investigating potential criminal activity, not skiing accidents — aren’t called at all.
Unless there has been a crime, law enforcement has no duty to investigate. If they investigated every crash, they would still be working on my mountain-bike crashes from last summer on US Forest Service and BLM (Bureau of Land Management) land.
Information
As a result, family members may have to accept the word of a resort employee about the circumstances that led to their relative’s death or serious injury — and typically; they need a subpoena to get even that, attorneys say.
Getting information from the resorts is difficult. Normally, the resort requires that you prove a legal need; you must be a relative or the injured person. Resorts have reasons for this. You do not want this information to go to anyone but the family because of privacy issues.
What if your relative died or was hurt at a resort? Would you be interested in having any of the following in the public domain?
· The injured skier smelled like alcohol. His blood-alcohol level was 2.8.
· The witness, girlfriend of the injured said…… (Spouse was home with the kids.)
· The injured commented that’s the last time he calls in sick to work and goes skiing.
I’ve read reports with 2 of the above on the reports, and I’ve heard about the third. Is that information you want to be public about someone you love?
What about hearing about the fatality of a family member from the authorities before you read about it online? This article ignores those issues, but ski resorts try to respect the wishes of family members.
Is your need to know greater than their right to a little kindness and privacy?
What information can you get from AT&T, Exxon, or GE about their latest accidents? Unless a business is required to report certain kinds of accidents, No Business gives out its accident reports.
If you ask an attorney to get you a report, the ski area is going to respond as if the ski area is going to be sued. Consequently, when facing a lawsuit, you shut the doors. If you want a copy of the report from your or a close family member’s accident, send a letter. You won’t get names or contact information of the patrollers. It is not their job to deal with you.
Of the state’s 25 ski areas, only one — Wolf Creek Ski Area — would discuss ski-patrol training and accident investigations.
Most resorts, nationwide follow the procedures of the National Ski Patrol (NSP). Every resort differs from other ski areas, but in general, you can research how something is investigated by reviewing the NSP website and several other websites. How do you know how law enforcement investigates accidents?
The other 24 resorts either refused to answer questions regarding ski patrol or did not respond to repeated calls and e-mails from The Post.
If someone from the press, including me, is calling to ask questions, you get a little nervous. You should be nervous when I call, and I get nervous when the press calls.
While working at a resort, I received a phone call from a member of the press who said they were writing a follow-up article to one I had written for a magazine several years before. That person lied to me. They were writing an article about ski resorts and quoted me as an employee of the resort. Lesson learned.
Police jurisdiction rare
That is a very misleading heading, sorry, this is a lie. Not rare, it exists at every resort. It is just not exercised. The sole power to exercise the jurisdiction is the law enforcement agency or the district attorney. Just because they do not, does not mean jurisdiction does not exist. There is no place in the US where at least one law enforcement agency has jurisdiction. The hard thing is finding places in the US were only one law enforcement agency has jurisdiction.
The nice thing about the above heading is just the start of an entire misleading paragraph.
Jennifer Rudolph, spokeswoman for Colorado Ski Country USA, the trade group representing all of the ski areas except the four owned by Vail Resorts, said in an e-mail….
Colorado Ski County USA is a marketing group. Its job and why it is paid by the Colorado Ski resorts is to get skiers to ski in Colorado. If you don’t believe me, go to the website and read why it exists: http://rec-law.us/ZoYVRs
Only a few local police departments have any jurisdiction over ski areas, and sheriff’s offices in Summit, San Miguel, Pitkin, Garfield, Routt and Eagle counties said their role is primarily to determine whether an incident involves a crime — such as theft, public intoxication or disruption — or a collision between slope users.
See the above statement about jurisdiction. The statement in the article is absolutely wrong and very misleading. It implies that the ski resorts operate without any law enforcement agency watching what they do. That is not true. If you could find a place where no law enforcement had jurisdiction in the US it would be crowded, full of pot plants and a lot of illegal guns. There would also be hundreds of cops waiting for someone to leave.
Summit County sheriff’s deputies don’t “respond to the majority of skier accidents. If it’s a death, the coroner would respond,” said spokeswoman Tracy LeClair. “Ski patrol usually handles the majority of noncriminalaccidents.”
Let’s look at this article this way. Who investigates accidents in your house? At least at ski areas, someone does. If there is a fatality at your house, then the same person investigates the fatality in your house as at the slopes: A coroner, unless the accident or fatality is a criminal act.
A coroner’s job is to declare people dead (C.R.S. § 30-10-601) and to determine the cause of death if it is not known or suspicious or from specific causes. (C.R.S. § 30-10-606)
“Ski patrol is there before us. Sometimes, the injured person has been evacuated before we arrive,” he said. “We have to rely on ski patrol and their analysis quite often.”
Thank Heavens! Seriously do you want to wait on the slope with a broken leg or a torn ligament until law enforcement drives from the sheriff’s office puts on skis or unloads a snow machine and comes up the slopes to you?
That is why we have the ski patrol; to get injured people to medical care. Can you see the lawsuit if this occurred? “Sorry mam, I can’t move you with that broken leg until the sheriff investigates.”
If you fall down in your house, do you call the police or the ambulance? If you fall down on the ski slopes do you call the sheriff or the ski patrol?
Sometimes, ski areas don’t give law enforcement information needed for an investigation. In 2004, a Colorado State Patrol sergeant was called to Vail to look into a fatal collision between a 13-year-old skier and an employee-driven snowmobile. He had never investigated a ski injury or fatality.
Sgt. S.J. Olmstead was assigned to the case because county law enforcement “didn’t want to deal with it,” he said in a 2006 deposition. “So somebody had to go take care of it.”
First: The story itself says there have been 47 deaths within five years (from my count of the red dots on the map.) How many police officers would have experience in investigating fatalities that occur on ski resorts?
Second: Vail is the largest employer in Eagle County. Probably, the Eagle County Sheriff’s department saw the fatality the article speaks to as a conflict of interest. Maybe the sheriff’s department knew the snowmobile driver’ or the snowmobile driver’s family. Or members of the sheriff’s department witnessed the accident. There could be dozens of things that triggered a conflict of interest issue in the mind of the Eagle county Sheriff’s department.
And thank heavens it did. Would you buy 100% any report when the Eagle County Sheriff’s department investigates a crime in the ski area of the county’s largest employer who had obvious conflicts of interest?
If you want ski accidents investigated by trained personnel, then contact your representative and have them create a law that says the sheriff’s office shall investigate all ski accidents. (Have fun paying for that one also.)
Third: If you have ever watched TV and watched a cop show, when an arrest is made the bad guy is given their Miranda Warnings, their legal rights. They have the right to remain silent. Vail, could have been held liable for the death, criminally; consequently, during a criminal investigation, the possible criminal should keep their mouth shut!
Ski areas consider ski-patrol and employee reports to be proprietary information. Therefore, victims or their families or law enforcement agencies cannot obtain them without the resorts’ permission — or a court order.
That information is not considered proprietary information, that information is proprietary information. My notes are proprietary information. The recipe you wrote down on a 3 x 5 card is proprietary or confidential information. Work you produce for work is proprietary information.
And again, do you really want your great Aunt Sally learning that her niece died in a ski accident because she was drunk?
I won’t give up my documents to anyone.
What about the rights of the deceased or the deceased family. Information in that report could be embarrassing. Deceased had a blood alcohol level of XX.X. Deceased was skiing with his girlfriend, while his wife was working. Deceased was supposed to be at work. Do you want that information floating around to members of the media or just nosey people?
The press has this idea that they should be entitled to anything they want to report a story. They don’t. There are laws that say what the media, the police and/or any other group can get from a private party or a business.
Then the article starts to complain because the ski patrol investigates an accident, and the cops don’t. The cops plead that they have a hard time getting reports from the ski patrol.
Have you tried getting a police report about an accident from a law enforcement agency? If the police want a report, they should go do it. It takes them a while to get to the far ends of the county, and it takes them a while to hike into the back country or get up the hill at a ski resort. It is a fact of life of a state with lots of wilderness and open space.
Despite the power that ski patrols have,…
What power? The power of the ski patrol is solely the power to transport an injured person down the hill and yank lift tickets of reckless skiers. They are not vested with power or given power by anyone to do anything.
The ski patrol does not have the power to detain someone who is involved in a skier v. skier collision, let alone any other power.
Accident Investigations?
This big issue with accident investigations is confusing. I’ve never had anyone investigate my mountain-bike crashes on US Forest Service land. I’ve never had someone investigate my back-country ski injuries. I’ve never had someone investigate my injuries from rock climbing. Yet there seems to be a big push in the article that 1) accident investigations are not being done and 2) if they are being done they are not being done right.
Automobile accidents are investigated because state statutes require law enforcement to investigate accidents, the damage done and the accidents occur on state land.
Automobile accidents have skid marks, car crumple zones, little black boxes, and tests that show when you hit a guard rail this way at this speed it looks like this. It snows; the wind blows and ski tracks look like every other ski track and are usually wiped out by snowboard tracks. Unless you hit a tree AND leave a mark on the tree or your body it is difficult to determine what happens.
One time in the past, I reviewed an investigation, and then did my own investigation into an accident. I talked to the injured skier and his spouse about what happened. The injured skier did not remember, and we never did figure out how the skier got hurt.
If there is a statute for someone, law enforcement to investigate accidents, then I’m sure their investigations will be better and professionally done. Right now, Ski Patrol accident investigations are done to help the ski area protect itself. The ski patrol is not tasked with any other duty by anyone.
A ski patroller’s job is to determine facts, not guess at what happened.
There is no law, no duty, and no requirement that any accident be investigated.
Accident Investigation Training
The article hits the accident investigation hard by comparing the training to that of National Park Rangers. Rangers are the law enforcement arm of the National Park Service. The job of a Ranger is basically to write tickets and arrest people for major crimes. They are law enforcement. There are statutes and regulations that empower them, command them and require them to investigation accidents and make arrests.
The article also tackles the contractual relationship between the US Forest Service and Vail, quoting from the contract. I would like to see the Denver Post contract with its writers and suppliers. I suspect that if you slam the Denver Post in an article, your career at the post is short lived.
The Bad
The ski industry is paranoid. I’ve been saying it for years. Too paranoid. However, I understand how that paranoia develops. When articles like misstate the facts and make things up, it would make you paranoid also.
As much as ski areas are paranoid the attorneys representing ski areas and the companies insuring ski areas are even more paranoid. They believe it is better not to say anything.
After this article, I understand why.
The Really Bad
The really bad is how misleading this article is. It is a veiled attempt to accomplish some goals, which are unknown at this time.
This article wasted a lot of paper and electrons attempting to make ski areas in Colorado look bad. Ski Areas in Colorado are the finest in the US. Ski Areas in Colorado are no different from any other business. The business has a duty to make a profit, and protect itself from bad publicity and lawsuits. Nothing in this article proved ski resorts did anything wrong or that any other corporation in the US does.
Read the article, the scary part is people out there believe the writer knows what they are talking about.
Disclaimer
No one paid me to write this, no one told me how to write this, no one asked me to write this. However we all have to learn that when we see or smell crap we should clean it up.
What do you think? Leave a comment.
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You have to be prepared way before trial, and you have to win at trial, because judges are given wide discretion in controlling your chances on appeal.
Posted: March 11, 2013 Filed under: Ski Area, Skiing / Snow Boarding, Washington | Tags: Appellate Court, Jump, Plaintiff, Ski, Ski lift, Ski Resort, Table-Top, Tabletop, Terrain park, Washington Leave a commentSalvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506
This case significantly changed the ski industry.
This decision out of the Washington Appellate Court offers value in understanding some issues that occur at trial. It also offers an example of how much control a judge has in a trial and why a judge really can control the outcome of your trial if you are not prepared.
The plaintiff in this case was an experienced skier who had gone over the table-top jump at issue before. There is conflicting testimony on how fast the plaintiff was skiing; however, he landed far down the hill beyond the landing zone. The injuries rendered him a quadriplegic. The case was taken to trial, and the jury found the plaintiff 55% liable and the ski area 45% liable. The jury awarded $30 million in damages, resulting in a $14 million-dollar recovery for the plaintiff.
The plaintiff sued “alleging that it designed and built an unreasonably dangerous ski jump, and that it failed to close the jump or to warn of its dangers.” The defense argued that the risk was an inherent part of skiing, and the plaintiff was negligent and therefore, the cause of his injuries.
Summary of the case
Washington like all other states has comparative negligence. However, unlike the majority of the states, this is a pure comparative negligence state. That means the jury awards an amount and decides what percentage each party to the litigation is at fault. In the majority of states if the plaintiff is more than 50% or 51% at fault the plaintiff recovers nothing. This is not true in Washington. The percentage is applied to the damages, and the plaintiff receives that percentage of the damages. 45% of $30 million is about $14 million.
Washington has a Skier Safety Statute. However, it is very weak and does not define the risks of skiing. In this case, the statute provided very little benefit to the defendant.
The majority of the decision focuses on the jury instructions. Jury instructions are the actual written instructions the jury takes with them into the jury room that explain the law. The legal issues and definitions are each on a separate on a piece of paper that is numbered. By reading through the instructions in numerical order the jury is helped to decide the legal issues or more importantly decide how the facts apply to the law.
Some states have pre-printed jury instructions. Federal courts and several states the jury instructions are created by the parties and the judge. In both cases, the opposing attorneys and judge creates the final instructions that the jury will read.
The judge is given wide discretion in creating jury instructions and unless the jury instructions are plain wrong, they are rarely overturned. That was the case here. The defendant argued several issues with the jury instructions, and the appellate court found none of the issues were so great as to be wrong. The judge has vast discretion to determine the jury instructions.
“The court need not include specific language in a jury instruction, so long as the instructions as a whole correctly state the law.”
Washington Skier Safety Act does not have any definitions for terrain parks or jumps. Like many ski area acts, Washington’s has not been updated to keep up with the changes in the sport.
This left the defendant with a tough burden of proving the risks of jumping in a terrain park was an inherent risk of skiing.
Washington applies the landowner test to the duty owed to patrons at a ski area. Because the skier is there for the financial benefit of the ski area, the skier is a business invitee which the ski area owes “a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.” The Appellate Court quoted from the Restatement of Torts to support its opinion, which places a very high burden upon a ski area.
An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.
Restatement (Second) of Torts § 343, cmt. d (1965).
The defendant argued that a notice on a whiteboard was sufficient to warn of the dangers. However, the court found otherwise. The plaintiff’s experts also opined that there should have been an entrance to the jump so skiers could not get so much speed. That was supported by 15 incidents reports the plaintiff placed into evidence of injuries from people landing beyond the jump landing zone. This was reduced from 66 the plaintiff had originally tried to have admitted.
If you keep paperwork showing a problem, you better also have paperwork showing what you did about the problem.
The ski area also argued they were not required to create a start point or place a sign there because the speed that a skier entered a jump was up to the skier.
The court, however, did make some statements from a skier’s perspective that seemed at odds with reality.
Lifts further contends that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini’s previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump’s deficiencies were “known and obvious” and whether Salvini should have anticipated the harm is a question of fact for the jury.
.. . . .
The trial court rejected most of the 66 incident reports offered by Salvini because it found that they were not sufficiently similar, and it admitted only “[t]hose accident reports documenting an injury occurring as a result of overshooting the jump in question, on either skis or snowboards (which go slower than skis.) … .” CP at 2635. If overshooting was a problem for slower moving snowboarders, it is reasonable to expect it to be a problem for skiers as well.
The first issue is that using a jump does not give you notice that the jump is dangerous seems to be at odds with reality. The issue that if you go over a jump and do not realize that it has increased dangers over skiing on flat terrain does not seem logical. Anytime you are going faster than you feel comfortable or above the ground without holding on to something seems to indicate an increase in risk that should be obvious to everyone.
At the same time, after you have done something dangerous enough times, enough being a different number for everyone, you become accustomed to the risk. However, being able to deal with the risk does not mean that you have totally lost the ability to understand or appreciate the risk.
The second is the court’s statement about snowboards going slower than skiers which does not seem to be supported in the opinion and could be argued in a lot of cases is as irrelevant. It is the skill of the person wearing the board or skis that have more of an influence on the speed rather than the implement itself.
This decision is a nasty one for ski areas. $14 million is a lot of money, especially for a small area and a small insurance pool
So Now What?
You cannot create risks just because every other competitor is doing it. If you state does not have the laws, or you do not have either the skills and knowledge or the defenses to deal with the risk you are over your head.
Find out what your competitors are doing. How they are approaching the risk. In this case, what fencing they are using, how they are building their features and who they are allowing in the features.
There were some very interesting things that occurred with this trial; however, that is the system we have in the US, and sometimes you get screwed.
Plaintiff: Kenneth Salvini
Defendant: Ski Lifts, Inc. (dba Snoqualmie Summit Ski Area)
Plaintiff Claims: Negligence
Defendant Defenses: inherent risks and signage
Holding: for the plaintiff
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Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506
Posted: March 11, 2013 Filed under: Legal Case, Ski Area, Skiing / Snow Boarding, Washington | Tags: Jump, King County Superior Court, Salvini, ski area, Ski lift, skiing, Tabletop, Terrain park, WA, Washington, Washington Court of Appeals Leave a commentSalvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506
Kenneth Salvini et al., Individually, Respondents, v. Ski Lifts, Inc., Appellant.
NO. 60211-0-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2008 Wash. App. LEXIS 2506
October 20, 2008, Filed
NOTICE: Rules of the Washington Court of Appeals may limit citation to unpublished opinions. Please refer to the Washington Rules of Court.
SUBSEQUENT HISTORY: Reported at Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2529 (Wash. Ct. App., Oct. 20, 2008)
PRIOR HISTORY: [*1]
Appeal from King County Superior Court. Docket No: 05-2-13652-9. Judgment or order under review. Date filed: May 31, 2007. Judge signing: Honorable Laura Inveen.
COUNSEL: Counsel for Appellant(s): William Robert Hickman, Pamela A. Okano, Reed McClure, Ruth Nielsen, Nielsen Law Office Inc PS, Wendy E Lyon, Riddell Williams PS, Seattle, WA; James W. Huston, Morrison & Foerster, LLP, San Diego, CA; Beth S. Brinkmann, Ketanji Brown Jackson, Morrison & Foerster, LLP, Washington, DC.
Counsel for Respondent(s): John Robert Connelly Jr., Connelly Law Offices, James Walter Beck, Gordon Thomas Honeywell, Tacoma, WA; Philip Albert Talmadge, Tukwila, WA.
JUDGES: Authored by Linda Lau. Concurring: Marlin Appelwick, Ronald Cox.
OPINION BY: Linda Lau
OPINION
¶1 Lau, J. — While attempting a terrain park ski jump at a ski area, Kenneth Salvini was severely injured. Salvini and his parents brought a negligence action against the owner-operator Ski Lifts, Inc. The jury found Salvini 55 percent responsible and Ski Lifts 45 percent responsible. Ski Lifts appeals, arguing that the trial court improperly instructed the jury on duty, inherent risk, and signage, and that it admitted prejudicial and irrelevant evidence of prior accidents. We conclude that [*2] the jury instructions were proper and that the trial court did not abuse its discretion in admitting evidence of prior accidents for the limited purpose of notice. Accordingly, we affirm.
FACTS
¶2 Ski Lifts owns and operates Snoqualmie, a ski area that features downhill skiing and a terrain park filled with artificial jumps and structures. Among these features are “table top” jumps, which have a takeoff ramp, a flat deck section, and a landing slope. To jump a table top successfully, a skier must approach the takeoff ramp with sufficient speed to launch into the air and clear the deck while maintaining enough control to land upright on the landing slope. “Overshooting” occurs when the skier lands past the end of the landing slope.
¶3 At approximately 7 P.M. on February 11, 2004, Kenneth Salvini arrived at Snoqualmie with his father and some friends. It was night, and the snow was rough, icy, and hard. After spending about an hour skiing at the Alpental downhill area, the main ski lift broke down. They then moved to the Summit Central downhill area. Salvini and a friend took a lift to the top of the mountain and skied over to the terrain park. A message hand written in light blue pen on a whiteboard [*3] sign posted near the lift read, “Terrain park Tip of the Week: Most injuries in the terrain park are as a result of the rider out-jumping the landing. Thanks, your friendly Ski Patrol.” Ex. 7. A Ski Lifts employee testified that the message was posted following several overshooting incidents. But Salvini and his friend did not see the sign.
¶4 Salvini, an experienced skier, decided to try a table top jump in the lower part of the terrain park–one that he had successfully jumped while skiing the previous week. Salvini testified that his goal was to approach the jump with “enough speed to make sure [he] cleared the deck.” Verbatim Report of Proceedings (VRP) (Mar. 22, 2007) at 83. Ski Lifts asserted that Salvini approached the jump at an excessively high speed, but Salvini presented evidence that his speed was within the range expected at a ski jump. He lost control, rotated backwards, “overshot” the landing ramp, and landed on his back onto a flat or nearly flat area. Salvini is now a quadriplegic.
¶5 Salvini and his parents filed a negligence action against Ski Lifts, alleging that it designed and built an unreasonably dangerous ski jump and that it failed to close the jump or to warn of [*4] its dangers, thereby exposing him to an extreme risk of serious injury beyond the risks inherent in the sport. Ski Lifts asserted that it was not negligent and that Salvini’s injuries were solely the result of the inherent risks of the sport and Salvini’s own negligence.
¶6 Ski Lifts filed a motion in limine to exclude evidence of prior accidents at the terrain park. Salvini responded with a motion to admit 66 prior incident reports. After reviewing the incident reports, the trial court admitted 15 reports for “the limited issue of notice” but excluded the remainder because they were not substantially similar. Clerk’s Papers (CP) at 2632-35. 1 At Ski Lifts’ request, the trial court instructed the jury that the reports were admitted “for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured.” CP at 2672.
1 The court originally admitted 16 incident reports, but this was later reduced to 15.
¶7 The jury found Salvini 55 percent at fault and Ski Lifts 45 percent at fault. The jury also found that Salvini had suffered approximately $ 30 million in damages, resulting in a judgment against Ski Lifts of approximately [*5] $ 14 million. The trial court denied Ski Lifts’ motion for a new trial. Ski Lifts now appeals.
ANALYSIS
Jury Instruction on Inherent Risk
¶8 Ski Lifts argues that the trial court erred in refusing to give its proposed jury instruction. The instruction stated: “An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.” CP at 2578. Alleged errors of law in jury instructions are reviewed de novo. Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266, 96 P.3d 386 (2004). Whether to give a particular jury instruction, however, is within the trial court’s discretion. Boeing Co. v. Key, 101 Wn. App. 629, 632, 5 P.3d 16 (2000). “Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied.” Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). “The trial court is given considerable discretion in deciding how the instructions will be worded.” Goodman v. Boeing Co., 75 Wn. App. 60, 73, 877 P.2d 703 (1994), aff’d, 127 Wn.2d 1020, 890 P.2d 463 (1995).
¶9 Chapter 79A.45 RCW [*6] generally sets forth the responsibilities of skiers and ski area operators. 2 The statute “modifies, but is generally consistent with, the common law.” Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 397, 725 P.2d 1008 (1986). It provides that “[b]ecause of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety.” RCW 79A.45.030(6). “A defendant simply does not have a duty to protect a sports participant from dangers which are an inherent and normal part of a sport.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 500, 834 P.2d 6 (1992). But “[a]lthough the statute imposes both primary and secondary duties on skiers, it ‘does not purport to relieve ski operators from all liability for their own negligence.'” Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 524, 984 P.2d 448 (1999) (quoting Scott, 119 Wn.2d at 500). Risks caused by negligent provision of dangerous facilities are not “inherent” in a sport. Scott, 119 Wn.2d at 498.
2 Nothing in the statute specifically addresses terrain park ski jumping.
10 Washington’s ski statute does not define “inherent risk.” 3 The language of Ski Lifts’ proposed instruction is drawn from [*7] an intermediate California appellate court decision, Vine v. Bear Valley Ski Co., 118 Cal. App. 4th 577, 13 Cal. Rptr. 3d 370 (2004). In Vine, a snowboarder who was seriously injured on a terrain park ski jump brought a negligence action against the ski area. The ski operator, arguing that it owed no duty to protect Vine against inherent risks, requested the following instruction on assumption of risk:
“The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.
“The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury.
“A failure to fulfill such duty is negligence.”
Id. at 594 n.5.
3 In contrast, some states have enacted ski safety statutes that define “inherent risks” [*8] and/or “inherent danger” of skiing with particularity. See, e.g., Colo. Rev. Stat. Ann. § 33-44-103(3.5) (West); Mich. Comp. Laws Ann. 408.342(2) (LexisNexis); 32 Me. Rev. Stat. Ann § 15217.
11 The trial court ruled that the primary assumption of risk doctrine did not apply because snowboarding does not inherently require jumps that are designed in such a way as to create an extreme risk of injury. Id. at 590. Thus, the court instructed the jury on ordinary negligence and contributory negligence but not on assumption of the risk. Id. at 595-97, 603.
12 The California appellate court held that the instructions were erroneous regarding the duty of care owed by the ski operator.
Nowhere was the jury informed that Bear Valley owed Vine no duty to protect her from the risks inherent in snowboard jumping. Indeed, the instructions suggested just the opposite, since it was obviously foreseeable that the inherent risks of riding a snowboard over the jump built by Bear Valley might result in injury.
Id. at 596. The court reasoned, “It is fundamentally unfair for a snowboarding injury case to go to a jury without any instruction on assumption of the risk.” Id. at 603.
13 Ski Lifts argues that under the reasoning [*9] of Vine, the trial court’s failure to give Ski Lifts’ proposed jury instruction defining the inherent risks of terrain park jumping deprived it of the ability to argue that the risks that caused Salvini’s accident were inherent in the sport and that he was responsible for his own injury. Salvini contends that the jury instructions given by the trial court were an accurate statement of the law and that Ski Lifts’ proposed additional instruction was unnecessary for Ski Lifts to argue its theory of the case.
14 We disagree with Ski Lifts. In Vine, the trial court declined to instruct the jury on the inherent risks of the sport, which erroneously precluded the jury from considering assumption of the risk. Here, in contrast, the trial court did instruct the jury on Salvini’s assumption of the risks that are an inherent and normal part of terrain park jumping. Instruction 16 stated,
A skier jumping in a terrain park assumes the dangers that are inherent in the sport of terrain park jumping. The ski area has no duty to protect a skier from dangers that are an inherent and normal part of jumping in a terrain park.
The ski area has a duty not to unduly enhance the risk of jumping in a terrain park [*10] beyond the risks inherent in the sport.
CP at 2674.
¶15 Instruction 16 properly informed the jury of Washington law, was not misleading, and permitted Ski Lifts to argue that the conditions and risks that caused Salvini’s injuries were an inherent and normal part of the sport. 4 During closing statements, Ski Lifts argued to the jury:
So what do we need to know in order to decide what is an inherent part of this sport? And what we know and what everybody has talked about is jumping is a fundamental activity, that’s what it is about. …
… Jumps are not safe, because ‘safe’ means free from injury or danger, free from risk, and we have to start out with the premise that this is an inherently dangerous activity; it is not free from risk. You can’t design out the risk, that’s part of jumping. …
… Talking about landing on your feet, landing on your landing gear, and absorbing the shock of a jump. That’s inherent in jumping, and that’s what is most important. …
… Two inherent dangers, everyone talked about it, losing control and falling. Those are things that come along with the sport.
… What we have to look at is what’s normal of [sic] this sport, and that the jumpers have [*11] the responsibility, they can choose their speed, depending on what they want to do. … And that’s why there is no starting point. That’s not a decision the ski area is making … , it is a decision the skier needs to make for themselves.
… .
The jump itself. Again, we talk first about what is normal to the sport. And the people who build the jump are telling you this is what’s normal for the sport. This is what all of the ski areas are doing, this is how the jumps are built. …
We have some other things that factor in to this particular table top and the choices that are available. And this is all part of what is normal in the sport. We have the jump itself, we have the two different landings, we have the half pipe off to the right, we have other jumps below, two take offs on that jump, and lots of room to go around on either side. … And those are things that we don’t have a duty to change because that’s an inherent and normal part of the sport. …
… .
… Because “normal” for a ski area includes people going to the first aid room for a whole variety of reasons, not to minimize it. But to say it is a risky sport and accidents happen, and you have to get back to [*12] the first part of our instruction, which is, there are inherent dangers … . And they are athletes and they are human and they did something different, and it ended up in injury. And nobody wants that to happen, but we can’t take that away and still have the sport, because what we have is something that is inherently dangerous and people are doing it because they want to. …
… .
… But what we know is that at the end of the day, it was not the ski area that caused the accident, it was the behavior of the jumper. And not in a critical way, because this is what is part of the sport. And that’s why it is an inherent risk, because it is very dangerous. And it starts out that way. And the ski area did not do anything to increase that danger. It is a normal jump and it is a normal activity. … The people that developed it told you what it was about, and the skier assumes the dangers that are inherent in the sport, and assumes what is part of the normal sport. Not a different sport, but this sport. And we don’t have a duty to make it a different sport. … What is this sport about? It is about the risk of falling and being injured. It is about speed and control and snow conditions [*13] and choices. And that’s all a normal part of the sport.
VRP (Apr. 4, 2007) at 6-46.
4 Salvini argues that Ski Lifts failed to preserve any error on inherent risks of ski jumping because it proposed and received instruction 16, which was a correct statement of the law. We disagree. Ski Lifts specifically took exception below to the trial court’s refusal to give an additional proposed definition of “inherent risk,” which it now contends was necessary for the jury to understand that phrase. This was sufficient to preserve the issue for appellate review under CR 51(f).
¶16 “Whether to define a phrase is a matter of judgment to be exercised by the trial court.” Goodman, 75 Wn. App. at 76. Under the instructions given, Ski Lifts could and did define the inherent and normal risks very broadly in crafting its argument to the jury. Ski Lifts’ additional instruction defining “inherent risk” was unnecessary and superfluous. 5 And when applied to this case, the definition is self-evident and obvious. The jury attributed 55 percent of the fault for the accident to inherent risk and Salvini’s own negligence. It is entirely speculative to conclude that the jury did not understand “inherent risk” or that [*14] the verdict would have been different if Ski Lifts’ proposed instruction had been given. 6 The trial court did not abuse its discretion in refusing to give a proposed instruction derived from California common law that was unnecessary to allow Ski Lifts to fully argue its theory of the case.
5 See Goodman, 75 Wn. App. at 76 (upholding trial court’s refusal to give a jury instruction defining the phrase “continuing violation” where the definition was self-evident and obvious when applied to facts of case).
6 In the special verdict form, the jury answered, “Yes” to the following question: “Was one or more of the inherent risks of jumping in a terrain park a proximate cause of plaintiff’s injuries?”
Jury Instruction on Duty to Discover Dangerous Conditions
¶17 Ski Lifts argues that instruction 15 misstated the duty owed by a ski area operator regarding the discovery and elimination of dangers, thereby erroneously holding Ski Lifts to an improperly broad duty to protect Salvini.
¶18 Instruction 15 stated,
The operator of a ski area owes its customers a duty to exercise ordinary care. This includes the exercise of ordinary care to provide reasonably safe facilities and to maintain in a reasonably safe [*15] condition those portions of the premises that such person is expressly or impliedly invited to use or might reasonably be expected to use. The operator of a ski area owes a duty to its customers to discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.
CP at 2673. (Emphasis added.)
¶19 Ski Lifts objects only to the final, italicized sentence of the instruction, which was added at Salvini’s request over Ski Lifts’ objection. 7 This sentence was drawn directly from the Scott decision, which describes the duty of care for ski area operators. “A skier is a business invitee of a ski area operator. The operator owes a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.” Scott, 119 Wn.2d at 500 (footnotes omitted). The Scott court further specified, “[T]he plaintiff assumes the dangers that are inherent in and necessary to the particular sport or activity” and that “[w]hile participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude [*16] a recovery for negligent acts which unduly enhance such risks.” Id. at 501 (third emphasis added).
7 Ski Lifts argues that instruction 15 misstated Washington law by failing to reference “unreasonably” dangerous conditions. Salvini contends that Ski Lifts failed to preserve this argument because it did not propose inserting the word “unreasonably” into the instruction. But Ski Lifts did object to instruction 15 on the ground that “the law would indicate that we don’t have a duty unless it is unreasonably dangerous. So I believe that the dicta from Scott that has been added to the WPIC instruction is not appropriate.” VRP (Apr. 3, 2007 P.M.) at 11. Accordingly, Ski Lifts’ proposed instruction was essentially the same as instruction 15, but without the final sentence taken from Scott. This sufficiently informed the trial court of the point of law in dispute to preserve for appellate review the issue of whether instruction 15 properly stated the duty owed by ski operators to skiers. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989). CR 51(f) does not require a party to additionally propose an alternative instruction under similar circumstances. Joyce v. State Dep’t of Corrections, 155 Wn.2d 306, 324-25, 119 P.3d 825 (2005).
¶20 Ski [*17] Lifts argues that the final sentence of instruction 15 misstated the duty of care for providers of an inherently dangerous activity such as terrain park ski jumping because, unlike Scott, it failed to specify that the duty was limited only to “unreasonably” dangerous conditions–those that “unduly enhance” the inherent risks. According to Ski Lifts, the omission of the word “unreasonably” from the jury instruction mistakenly informed the jury that Ski Lifts’ legal duty was to eliminate all dangers to terrain park ski jumpers–a standard that is impossible to meet. Ski Lifts further contends that instruction 16 was insufficient to cure the defect in instruction 15 regarding Ski Lifts’ duty of care for three reasons. First, it is not clear that the “unduly enhance” language of instruction 16 operates to limit instruction 15’s reference to “dangerous conditions.” Second, it was contradictory and confusing to instruct the jury that Ski Lifts was responsible for “dangerous conditions” (instruction 15) while also instructing it that Salvini assumed the dangers inherent in terrain jumping (instruction 16). Third, under the reasoning of Vine, the jury could not determine comparative fault [*18] without an instruction specifically defining the inherent risks assumed by Salvini.
¶21 We disagree with Ski Lifts and hold that instructions 15 and 16 properly instructed the jury on Washington law. “The court need not include specific language in a jury instruction, so long as the instructions as a whole correctly state the law.” Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000).
¶22 Instruction 15 accurately summarized the well-established duty of care owed by ski area operators to skiers. Washington courts have adopted with approval the Restatement (Second) of Torts § 343 (1965), which sets forth the duties a possessor of land owes to an invitee. Iwai v. State, 129 Wn.2d 84, 95, 915 P.2d 1089 (1996). Section 343 states,
Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, [*19] and
(c) fails to exercise reasonable care to protect them against the danger.
¶23 The ski operator owes an affirmative duty of care to the skier, as a business invitee, to discover dangerous conditions through reasonable inspection and repair them or warn the invitees of the hazard unless it is known or obvious. See, e.g., Scott, 119 Wn.2d at 500; Brown, 97 Wn. App. at 524; Codd, 45 Wn. App. 396-97. Consistent with this standard, instruction 15 also stated that the ski area operator’s duty is to provide “reasonably safe facilities” and to maintain them in a “reasonably safe condition.” Furthermore, instruction 16–to which Ski Lifts did not object–specified that a ski area has no duty to protect against “dangers that are an inherent and normal part of jumping in a terrain park” and that “[t]he ski area has a duty not to unduly enhance the risk of jumping in a terrain park beyond the risks inherent in the sport.”
¶24 Together, these instructions accurately summarized the law, allowed Ski Lifts to argue its theory of the case, and were not contradictory, confusing, or misleading. Ski Lifts could, and did, argue that the risks of the jump were known and obvious. Ski Lifts could, and did, argue [*20] that Salvini’s injuries resulted from the inherent risks of the sport. And the trial court gave an instruction on comparative fault to which Ski Lifts did not object. As discussed above, Ski Lifts’ proposed instruction defining “inherent risk” was unnecessary to allow Ski Lifts to fully argue all of its claims. The trial court did not abuse its discretion in refusing to omit the final sentence from instruction 15.
Jury Instruction on Failure to Warn
¶25 Ski Lifts argues that Salvini offered no evidence of proximate cause to support his claim that Ski Lifts was liable on a failure to warn theory. Instruction 15 informed the jury that Ski Lifts had a duty to “discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.” Instruction 17 stated, “A statute relating to ski areas provides: All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed.” 8 Relying primarily on products liability cases, Ski Lifts contends that proof of proximate cause on a failure to warn theory requires the plaintiff to show that he would have read and [*21] heeded an adequate warning. Because instructions 15 and 17 invited the jury to find Ski Lifts liable for failure to warn in the absence of evidence that Salvini would have behaved differently had he received better warnings, Ski Lifts contends that there was insufficient evidence to support these instructions. 9 We disagree.
8 RCW 79A.45.010(1).
9 We also note that during closing arguments, Ski Lifts did not contend that Salvini had failed to provide sufficient evidence of proximate cause on a failure to warn theory.
¶26 As a preliminary matter, we note that Ski Lifts objected to the final sentence of instruction 15 on the ground that it misstated the premises liability standard of care for ski area operators. But it did not object to instruction 15 on the ground that it erroneously instructed the jury on a failure-to-warn theory. Nor did Ski Lifts mention instruction 15 when it objected to instruction 17 on the ground that there was no evidence of proximate cause to support it. CR 51(f) requires that counsel state distinctly the matter to which he objects and the grounds for that objection so that the court may correct any error before instructing the jury. Because Ski Lifts did not apprise [*22] the trial court of the point of law in dispute, it waived any claimed error regarding instruction 15 or its interplay with instruction 17 in the context of this argument. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989).
¶27 Ski Lifts’ argument misconstrues the purpose of instruction 17 in this premises liability case. Salvini claimed that Ski Lifts “was negligent in the design, construction, and maintenance of the terrain park jump on which [he] was injured.” CP at 2960 (instruction 2). To establish an action for negligence, a plaintiff must show (1) the existence of a duty, (2) breach of that duty, (3) a resulting injury, and (4) proximate cause. Iwai, 129 Wn.2d at 96. In premises liability cases, a landowner’s duty of care is governed by the entrant’s common law status as an invitee, licensee, or trespasser. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Here, the parties do not dispute that Salvini was a business invitee of Ski Lifts.
¶28 “The duty owed by the possessor to the invitee derives from the entrant’s expectation that the possessor has exercised due care to make the premises reasonably safe.” The Law of Premises Liability (3d ed.) [*23] § 4.1, at 75 (2001). This duty may be fulfilled by an appropriate warning or other affirmative action to remedy the danger. Id. “An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.” Restatement (Second) of Torts § 343, cmt. d (1965).
¶29 Salvini contended that Ski Lifts was negligent under this common law premises liability standard. And Ski Lifts could satisfy its duty to protect its customers from unreasonably dangerous conditions by providing adequate warnings. Instruction 17 went directly to Ski Lifts’ defense that it had met this duty. This instruction properly allowed the jury to evaluate the reasonableness of the warnings provided in light of the statutory signage requirements and the degree to which Salvini was comparatively at fault for failing to see the whiteboard sign.
¶30 Both parties presented evidence at trial regarding the reasonableness and adequacy of the warning signs. Expert witnesses Dr. Richard Gill and Richard Penniman testified extensively regarding the [*24] inadequacy of Ski Lifts’ warning signs. Salvini testified that he did not see the whiteboard sign. Salvini’s skiing companion and Salvini’s father, as well as several Ski Lifts employees, also testified that they did not see the sign. Expert witnesses Helge Lien and Richard Penniman testified that Ski Lifts should have designated a starting point for the jump to prevent skiers from gaining too much speed and overshooting the jump. Salvini argued in closing that the jump was not reasonably safe and that the signage failed to warn of the specific hazard known to Ski Lifts. He did not contend that Ski Lifts was additionally liable on a separate failure-to-warn theory.
¶31 Ski Lifts introduced photographs of its warning signs into evidence, and the photos were shown to the jury. Ski Lifts employees Dan Brewster and Bryan Picard 10 testified regarding the location and content of the warning signs. Ski Lifts’ expert witness Elia Hamilton testified that the warning signs at the entrance of the terrain park were “absolutely” appropriate. Ski Lifts relied on the signage evidence to argue in closing that Salvini was adequately warned. 11 Ski Lifts also argued that it had no duty to post signs designating [*25] a starting point because that choice is part of the skier’s responsibility. “‘[P]rejudicial error occurs where the jury is instructed on an issue that lacks substantial evidence to support it.'” Manzanares v. Playhouse Corp., 25 Wn. App. 905, 910, 611 P.2d 797 (1980) (quoting Haynes v. Moore, 14 Wn. App. 668, 672, 545 P.2d 28 (1975)). There was ample evidence to support giving instruction 17. 12
10 Bryan Picard was employed by Ski Lifts at the time of Salvini’s accident, but no longer employed by Ski Lifts at the time of trial.
11 “Another part of the responsibility code, observe all posted signs and warnings. The information is there. We can’t make people read signs, we can’t make people do anything, these are choices. But the signs are there, and this is part of the skiers’ responsibility.” VRP (Apr. 4, 2007 A.M.) at 9.
12 To the extent Ski Lifts contends that instruction 15 in combination with instruction 17 presented a separate inadequate warning theory of liability, Ski Lifts’ failure to request a clarifying special verdict form requiring the jury to indicate which theories of liability the jury relied upon precludes it from raising such an argument on appeal. See Davis v. Microsoft Corp., 149 Wn.2d 521, 539-40, 70 P.3d 126 (2003).
¶32 Ski [*26] Lifts further contends that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini’s previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump’s deficiencies were “known and obvious” and whether Salvini should have anticipated the harm is a question of fact for the jury. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 54, 914 P.2d 728 (1996). The jury instructions properly allowed Ski Lifts to argue that the alleged defect was known or obvious, while also allowing Salvini to argue that it was not.
Evidence of Prior Accidents
¶33 Ski Lifts argues that the trial court abused its discretion in admitting evidence and testimony regarding 15 prior incidents of overshooting the same jump at which Salvini was injured. The court ruled that these incident reports were not admissible “as substantive evidence of the existence of a dangerous condition,” but that they were sufficiently similar “to put Ski Lifts on notice of a potential defect to warrant further inquiry into the design of the jump, or the reasonableness [*27] of the signage in light of the multiple injuries caused as a result of overshooting the landing of the jump in question.” CP at 2635. Ski Lifts moved the court for a limiting instruction on the admission of prior incident reports. The trial court granted Ski Lifts’ motion and gave a limiting instruction.
Exhibits 154, 155, 160, 161, 163, 165, 166, 167, 170, 171, 172, 173, 174, 175 and 176 are accident reports. These accident reports have been admitted into evidence for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured. You are not to infer anything beyond notice by admission of these prior accidents.
CP at 2672 (instruction 14).
¶34 “A trial court’s decision admitting or excluding evidence is reviewed for an abuse of discretion, which occurs only when the exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons.” Kimball v. Otis Elevator Co., 89 Wn. App. 169, 172-73, 947 P.2d 1275 (1997).
¶35 In a negligence case, other accidents and injuries are inadmissible to show a general lack of care or negligence, but may be admissible on other, more limited issues if the conditions [*28] are sufficiently similar and the actions are sufficiently numerous. 13 5 Karl B. Tegland, Washington Practice: Evidence § 402.11, at 304 (2007) (citing Panitz v. Orenge, 10 Wn. App. 317, 322, 518 P.2d 726 (1973)). Evidence of prior accidents which occurred under substantially similar circumstances is admissible for the purpose of demonstrating a dangerous condition or notice of a defect. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). Turner v. City of Tacoma, 72 Wn.2d 1029, 1036, 435 P.2d 927 (1967).
13 Some courts have recently relaxed the substantial similarity requirement when the evidence is offered for the purpose of showing notice. 5 Tegland, supra, § 402.11 (Supp. 2008).
¶36 The admitted reports need not be identical, only substantially similar. See, e.g., Seay v. Chrysler Corp., 93 Wn.2d 319, 324, 609 P.2d 1382 (1980) (upholding admission of evidence of other accidents involving same type of car chassis); Blood v. Allied Stores Corp., 62 Wn.2d 187, 189, 381 P.2d 742 (1963) (upholding exclusion of reports that showed “no similarity”); Miller v. Staton, 58 Wn.2d 879, 884-85, 365 P.2d 333 (1961) (upholding admission of evidence of previous fights in a tavern); [*29] O’Dell v. Chi., Milwaukee, St. Paul & Pac. R.R.., 6 Wn. App. 817, 826, 496 P.2d 519 (1972) (upholding admission of evidence of other near-accidents at same railroad crossing).
¶37 Ski Lifts first argues that Salvini failed to establish that the prior incidents were substantially similar to his situation because 13 of the 15 incident reports involved snowboarders, not skiers, and because the two reports involving skiers occurred under different conditions. We disagree. The trial court rejected most of the 66 incident reports offered by Salvini because it found that they were not sufficiently similar, and it admitted only “[t]hose accident reports documenting an injury occurring as a result of overshooting the jump in question, on either skis or snowboards (which go slower than skis.) … .” CP at 2635. If overshooting was a problem for slower moving snowboarders, it is reasonable to expect it to be a problem for skiers as well. Admitting evidence of prior accidents that occurred at the same table top jump, whether they involved skiers or snowboarders, was not an abuse of discretion.
¶38 Ski Lifts argues that the trial court’s limiting instruction was a confusing and meaningless restriction on [*30] the use of the evidence. 14 But Ski Lifts did not assign error to this limiting instruction and has therefore waived any objection to it. 15 Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 281, 96 P.3d 386 (2004). Indeed, Ski Lifts asked the court to read the limiting instruction immediately before the prior incident evidence was presented to the jury and to include it among the court’s instructions to the jury. The court granted both requests.
14 Ski Lifts appears to challenge both the giving and the language of the limiting instruction. “A limiting instruction is available as a matter of right. If evidence is admissible only for a limited purpose and an appropriate limiting instruction is requested, the court may not refuse to give the instruction.” 5 Tegland, supra, § 105.2 (2007) (interpreting ER 105).
15 The limiting instruction requested and proposed by Ski Lifts contained a final sentence stating, “You are not to infer from these accident reports that the defendant was negligent.” CP at 2637. Salvini requested that the court remove that sentence and replace it with, “[Y]ou are not to infer anything beyond notice by admission of these prior accidents.” 1 Transcript of Proceedings (TR) (Mar. 12, 2007) at 28. [*31] The trial court agreed with Salvini and modified Ski Lifts’ proposed instruction accordingly. Ski Lifts did not object.
¶39 Ski Lifts argues that the prior incidents should not have been admitted for the purpose of notice, because it conceded that it was aware of overshooting incidents. “Evidence of similar accidents is inadmissible to prove notice, if there is no question that there was notice, or if notice is not a disputed issue in the case.” 5 Tegland, supra, at 306 (citing Hinkel v. Weyerhaeuser Co., 6 Wn. App. 548, 555-56, 494 P.2d 1008 (1972)); Porter v. Chicago, M., P. & P.R. Co., 41 Wn.2d 836, 842, 252 P.2d 306 (1953). We disagree.
[T]he fact that evidence is undisputed does not, alone, make the evidence inadmissible. Undisputed evidence may be valuable background information or other information that the jury, in fairness, ought to hear.
Thus, as a general rule, a party cannot frustrate the introduction of evidence by offering to stipulate to the underlying facts.
5 Tegland, supra, at 469. See, e.g., State v. Pirtle, 127 Wn.2d 628, 652, 904 P.2d 245 (1995); State v. Rice, 110 Wn.2d 577, 598-99, 757 P.2d 889 (1988); the plaintiff is not bound to stipulate to the issue unless its probative [*32] value is substantially outweighed by unfair prejudice. Pirtle, 127 Wn.2d at 653.
¶40 The issue in this case went beyond the mere fact that Ski Lifts had notice of overshooting. The prior incident reports were probative of the extent and nature of the notice, which went directly to the question of whether Ski Lifts met its duty of care based on what it knew. Salvini is not categorically bound from introducing evidence of substantially similar prior overshooting incidents merely because Ski Lifts admitted it knew that they were occurring.
¶41 Ski Lifts also contends that the evidence was not probative of notice of a design defect because overshooting incidents are common. But evidence of prior accidents goes directly to the issue of whether Ski Lifts exercised reasonable care in light of what it knew about the performance of this particular table top jump. Therefore, it had probative value.
¶42 Ski Lifts argues that the incident reports should have been excluded under ER 403, which provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury … .” The burden of showing prejudice [*33] is on the party seeking to exclude the evidence. Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994); 5 Tegland, supra, § 403.2 at 435.
[T]he exercise of discretion in balancing the danger of prejudice against the probative value of the evidence is a matter within the trial court’s discretion and should be overturned only if no reasonable person could take the view adopted by the trial court. A trial judge, not an appellate court, is in the best position to evaluate the dynamics of a jury trial and therefore the prejudicial effect of a piece of evidence.
State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007) (internal citations omitted).
¶43 Ski Lifts argues that any probative value was outweighed by the extreme prejudicial effect, because Salvini’s counsel and expert witnesses referenced the incident reports not just to demonstrate notice, but also to show that the jump was improperly designed and unreasonably dangerous. But although Ski Lifts lodged “a continuing objection regarding the accident reports,” 1 TR (Mar. 12, 2007) at 51, it never objected to Salvini’s closing argument or trial testimony that allegedly went beyond the limited purpose of notice. Rather, it raised this issue [*34] for the first time in its motion for a new trial. To challenge a trial court’s admission of evidence on appeal, a party must raise a timely and specific objection at trial. State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007). ?To be timely, the party must make the objection at the earliest possible opportunity after the basis for the objection becomes apparent.” Id. at 557 n.27. By failing to object at trial, a party waives any claim that the evidence was erroneously admitted. ER 103(a)(1); State v. Warren, 134 Wn. App. 44, 57-58, 138 P.3d 1081 (2006), review granted, 161 Wn.2d 1001 (2007).
¶44 Because Ski Lifts did not timely object to the improper argument and testimony, Ski Lifts waives any challenge to it now on appeal. “‘The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.'” State v. Sullivan, 69 Wn. App. 167, 170-71, 847 P.2d 953 (1993) (quoting State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984)). But when a party who prevails on a motion in limine later suspects a violation of that ruling, that party has a [*35] duty to bring the violation to the court’s attention to allow the court to decide what remedy, if any, to direct. A.C. ex rel Cooper v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004). As one court explained,
[W]here the evidence has been admitted notwithstanding the trial court’s prior exclusionary ruling, the complaining party [is] required to object in order to give the trial court the opportunity of curing any potential prejudice. Otherwise, we would have a situation fraught with a potential for serious abuse. A party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.
Sullivan, 69 Wn. App. at 172.
¶45 Here, while the court ruled that Salvini would be allowed to present evidence of prior incidents for the limited issue of notice, Ski Lifts was still required to object when Salvini’s counsel elicited improper testimony in violation of the motion in limine so the court could attempt to cure any resulting prejudice. By failing to do so, Ski Lifts waived review of this issue. In addition, Ski Lifts’ nonspecific continuing objection was insufficient to preserve the issue [*36] for appellate review. State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976); State v. Saunders, 132 Wn. App. 592, 607, 132 P.3d 743 (2006).
¶46 Ski Lifts further contends that the evidence was prejudicial because the jury might have improperly punished Ski Lifts for being a bad actor or improperly inferred that the jump must have been defective. We disagree. As discussed above, Ski Lifts successfully moved for a limiting instruction, which was read to the jury at the time the evidence was presented and was included in the court’s instructions to the jury. “A jury is presumed to follow the court’s instructions and that presumption will prevail until it is overcome by a showing otherwise.” Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990) (curative instructions); see also State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995) (limiting instructions). And the trial court also instructed the jury in instruction 1 that “[i]t is your duty to decide the facts of the case based on the evidence presented to you during this trial” and that “[y]ou must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on [*37] the law given to you, not on sympathy, bias, or personal preference.” CP at 2657-59. Therefore, Ski Lifts’ arguments that the jury might have misused the evidence or that it might have improperly punished Ski Lifts are purely speculative.
¶47 In sum, we conclude that the jury instructions accurately stated the law, were not misleading, allowed Ski Lifts to argue its theory of the case, and were supported by substantial evidence. We further conclude that the prior incident reports were properly admitted. Accordingly, we affirm.
Cox and Appelwick, JJ., concur.
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Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Posted: March 4, 2013 Filed under: Assumption of the Risk, Missouri, Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Law, Lesa Moffatt, Missouri, Resort, Ski, ski area, Ski Resort, skiing, Snow Creek Leave a commentLewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
A judge that works hard to find problems does not help.
This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.
The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.
Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:
I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;
II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;
III. Defendant created a dangerous condition by making artificial snow; and
IV. IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.
The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.
Summary of the court’s analysis
The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:
· Trespasser
· Invitee
· Business Invitee
Here, the injured skiers were either “invitees” or “business invitees.”
An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.
The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.
· Express
· Implied
· Primary
· Implied Secondary
Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.
The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.
Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.
Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…”
The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.
The court found, even though the release used the term negligence, it was not enough.
In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!
In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”
The court held the word negligence in this release was too broad and covered claims that could not be released.
The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”
The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.
The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”
The court then went back to the assumption of the risk discussion.
Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.
Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.
…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.
The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”
The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.
The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.
So Now What?
The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.
1. Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.
2. Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.
3. No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.
4. If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)
5. If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.
And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.
Plaintiff: Lesa Moffatt and Carrie Lewis
Defendant: Snow Creek, Inc.
Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence
Defendant Defenses: Assumption of the Risk
Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.
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Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
Posted: March 4, 2013 Filed under: Assumption of the Risk, Legal Case, Missouri, Ski Area, Skiing / Snow Boarding | Tags: Appeal, Appellant, assumption of the risk, Business Invitee, Carrie Lewis, Failure to Warn, Inc., Invitee, Landowner, Lesa Moffatt, Plaintiff, ski area, skiing, Snow Creek, St. Louis Missouri, Summary judgment, Supreme Court Leave a commentLewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421
Carrie Lewis, Lesa Moffatt, Appellants, v. Snow Creek, Inc., Respondent.
WD 55070
COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT
6 S.W.3d 388; 1999 Mo. App. LEXIS 421
March 31, 1999, Opinion Filed
SUBSEQUENT HISTORY: [**1] Respondent’s Motion for Rehearing and/or Transfer to Supreme Court Passed June 1, 1999. Respondent’s Motion for Rehearing and/or Transfer to the Supreme Court Denied July 27, 1999. Opinion Readopted and Mandate Issued January 6, 2000, Reported at: 2000 Mo. App LEXIS 7.
PRIOR HISTORY: Appeal from the Circuit Court of Platte County, Missouri. The Honorable Ward B. Stuckey, Judge.
DISPOSITION: Affirmed in part and reversed in part.
COUNSEL: Fritz Edmunds, Jr., Overland Park, KS, for Appellants.
Thomas Magee, St. Louis, MO, for Respondent.
JUDGES: Albert A. Riederer Judge. Lowenstein and Stith, JJ., concur.
OPINION BY: ALBERT A. RIEDERER
OPINION
[*391] This is an appeal from summary judgments granted in each of two separate suits filed by two different plaintiffs making identical claims against Respondent. Pursuant to a motion filed by Appellants and Respondent, the cases have been consolidated on appeal. Because we find that there is disputed evidence regarding both Respondent’s liability as a possessor of land and Appellant’s implied assumption of the risk, and because we find that express assumption of the risk did not apply under the facts in this record, we reverse on those issues. However, because there is no disputed evidence regarding count III of the petitions, and because Respondent is entitled to judgment as a matter of law on that count, we affirm as to that count.
Factual and Procedural Background
On January 8, 1995, Appellant Lesa Moffatt rented skis at Snow [**2] Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” On January 21, 1995, Appellant Carrie Lewis rented skis at Snow Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” The form states in pertinent part:
10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.
This document was signed by both Lewis and Moffatt during the process of renting equipment. Lewis and Moffatt both stood in line with people in front of and behind them when they received this form. The form had to be completed before obtaining skis and equipment. Both Lewis and Moffatt claim that they felt pressured to move along and did not have an adequate opportunity to read and fully comprehend the rental form.
Lewis [**3] and Moffatt both fell on ice at Snow Creek and were injured. Lewis and Moffatt each filed a separate petition against Respondent which included the same four counts: I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred; II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to properly release when plaintiff fell, injuring plaintiff’s leg; III. Defendant created a dangerous condition by making artificial snow; and IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises. Respondent generally [*392] denied Appellant’s claims in its answer and asserted affirmative defenses of comparative fault and assumption of the risk.
Respondent filed a motion for summary judgment in each case. Respondent submitted as evidence the “Snow Creek Ski Area Rental Form” and the deposition of the plaintiff in each case. In response to Respondent’s motions for summary judgment, each Appellant submitted additional evidence in the form of her own affidavit. Both motions for summary judgment were granted. Lewis’ and Moffatt’s [**4] claims are identical, and they have been consolidated on appeal.
Standard of Review
[HN1] Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo. App. 1997) (citing, ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id. [HN2] To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id.
In accordance with the law, we analyze whether summary judgment is appropriate on the record developed by the parties and presented to this court. The Respondent advances several arguments why summary judgment is appropriate. First, it claims as a possessor of land, it has no duty to warn a business invitee of dangers which are open and obvious as a matter of law and that the ice alleged to have caused the fall and injury was [**5] open and obvious as a matter of law. Second, it claims Appellants expressly assumed the risk of this injury by signing the Rental Form. Third, it claims Appellants impliedly assumed the risk of this injury by engaging in the sport of skiing. Fourth, it claims the Rental Form operates as a release.
I. Duty of the Possessor of Land
Respondent claims that the presence of ice on a ski slope should be determined to be an open and obvious danger as a matter of law.
A. Duty Owed To A Business Invitee
” [HN3] The standard of care owed by a possessor of land is dependent upon the status of the injured party.” Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 932 (Mo. App. 1996). An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993) (quoting, Restatement (Second) of Torts, § 332 (1965). As [HN4] business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. Peterson, 920 S.W.2d at 932. A possessor of land is [**6] liable to an invitee only if the possessor:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Id. Generally, [HN5] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Id. at 933. “The exception to this rule is where ‘the possessor should anticipate the harm despite such knowledge or obviousness.'” Id. A condition is open and obvious if invitees should reasonably be expected to discover it. Id.
Given the preceding principles, the pivotal question is whether the ice was an open and obvious condition on the land [*393] as a matter of law. If we determine the ice was an open and obvious condition on the land as a matter of law, Respondent as possessor has no liability – unless he should anticipate the harm despite such knowledge or obviousness. Id. [**7] Thus, the next question would be whether Respondent could reasonably rely on its invitees – skiers – to protect themselves from the danger of ice or whether Respondent should have expected that skiers would not appreciate the danger thus posed. Harris, 857 S.W.2d at 226. We need not reach the second question because this court is unwilling, under the facts as developed in this case, to declare that the conditions on Respondent’s property, which allegedly caused the fall, were open and obvious as a matter of law. To the contrary, we find there is a genuine dispute regarding a material fact: the nature and character of the ice alleged to have caused the fall. “For purposes of Rule 74.04, [HN6] a ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” ITT, 854 S.W.2d at 382. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id. In this case, Appellants characterized the ice as large areas of thick impenetrable ice hidden under a dusting of snow. The evidence is that the Appellants fell on ice which they did not see because [**8] of the snow. Respondent maintained that both Appellants encountered ice on trails that the Appellants had been down several times before they fell. This is not sufficient evidence for this court to find that the ice Appellants encountered was an open and obvious danger as a matter of law. It is not clear that the Appellants should have reasonably been expected to have discovered the icy condition. Peterson, 920 S.W.2d at 933. ” [HN7] When there is disputed evidence – as in this case – on whether the landowner had reason to expect this type of accident . . ., the case properly belongs to the jury.” Harris, 857 S.W.2d at 229. Therefore, we find that Respondent was not entitled to summary judgment because there is a genuine issue regarding the ice, and the ice in question was not an open and obvious danger as a matter of law.
II. Assumption of Risk
Appellants claim that the trial court erred in granting summary judgment because the defense of assumption of the risk requires a jury determination as to disputed material facts. Specifically, Appellants claim that a jury should decide whether they knew of the ice and whether they understood and appreciated the [**9] danger posed by the ice. Respondent claims that the Appellants’ injuries were the result of a risk inherent in the sport of skiing, and therefore, the Appellants assumed the risk, or in the alternative, that Appellants expressly assumed the risk by signing the rental form. [HN8] Assumption of risk is generally categorized as express, implied primary, and implied secondary (reasonable and unreasonable). Sheppard v. Midway R-1 School District, 904 S.W.2d 257, 261-62 (Mo. App. 1995).
A. Express Assumption of Risk
[HN9] Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Id. Recovery is completely barred since there is no duty in the first place. Id. Respondent argues that the Rental Form, signed by both Appellants, specifically mentioned the snow. Respondent correctly argues that the Rental Form relieves it of liability for injury due to snow. The evidence is that the Appellants knew about the snow and voluntarily assumed that risk. However, we cannot agree that the Rental Form relieves Respondent from injury liability due to ice. First, the Rental Form did not mention injury due to ice. [**10] In addition, the Rental Form could only relieve Respondent of such liability if the general reference to “negligence” is sufficient to do so. The clause of the Rental Form reads as follows:
[*394] 10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.
” [HN10] Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “However, contracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language [**11] in the contract is required to absolve a person from such liability.'” Id. (quoting, Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. App. 1995)).
“Historically, [HN11] Missouri appellate courts have required that a release from one’s own future negligence be explicitly stated.” 923 S.W.2d at 336 (emphasis in original). The Court in Alack determined that the best approach was to follow precedent and decisions from our state as well as others and to require [HN12] clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. 923 S.W.2d at 337. The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Id. General language will not suffice. Id. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Id. [HN13] Whether a contract is ambiguous is a question of law to be decided by the court. Id. “An ambiguity arises when there is [**12] duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.” Id.
Respondent’s exculpatory clause uses the term “negligence.” However, that does not end our inquiry. We must determine whether the exculpatory clause uses “clear, unmistakable, unambiguous and conspicuous language.” Id. The exculpatory clause purports to shield Respondent from “any claim based on negligence and . . . any claim based upon . . . other legal theory. . . .” Alack teaches us that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” Id. Respondent argues that the language from paragraph 8 of the rental form “does not purport to release defendant from liability for intentional torts, gross negligence, or activities involving the public interest ” and that use of the word “negligence” results in a clear understanding of the acts for which liability is released. We disagree. The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, [**13] gross negligence or any other cause of action not expressly listed. ” [HN14] A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.” Id. Here, the Rental Form purports to relieve Respondent of all liability but does not do so. Thus, it is duplicitous, indistinct and uncertain, Id., and thence arises an ambiguity. Rodriguez v. General Accident, 808 S.W.2d 379, 382 (Mo. banc 1991).
In addition, the exculpatory language and its format did not effectively notify the Appellants that they were releasing Respondent from claims arising from its negligence. The form the Appellants signed was entitled “Snow Creek Ski Area Rental Form.” It did not indicate it [*395] was a release. This title was in large type and could not be reasonably construed to include release of liability. By contrast, the exculpatory clause is in approximately 5 point type at the bottom of the form. “[ [HN15] A] provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Alack, 923 S.W.2d at 335. The Appellants had to sign [**14] the Rental Form to receive ski equipment and had to do so while in a line. The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving. Id. at 337-38. The language drafted by Respondent is not “unambiguous” or “conspicuous,” and thus does not meet the standard of Alack. Id.
Thus, Respondent cannot rely on that language to claim the Appellants expressly assumed the risk of the injury complained of in the petition.
B. Implied Assumption of Risk
[HN16] Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. Sheppard, 904 S.W.2d at 261. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks. Id. The plaintiff’s consent is implied from the act of electing to participate in the activity. Id. Implied primary assumption of the risk is also a complete bar [**15] to recovery. Id. at 262. On the other hand, [HN17] implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. Id. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. Id. If the plaintiff’s action is reasonable, he is not barred from recovery. Id. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. Id. This case involves implied primary assumption of the risk.
Appellants claim the trial court erred when it ruled, “the court finds that the Plaintiff assumed the risk of injury by skiing on the Defendant’s ski slope and that Plaintiff’s injuries were of a type inherent to the sport of skiing and that this incident involves dangers so obvious that the Defendant does not owe a duty to the Plaintiff and therefore is not required to warn the Plaintiff of such danger.” Respondent argues that the Appellants are barred by [**16] implied primary assumption of risk because by engaging in the sport of skiing, they impliedly assumed the risk of falling on the ice.
“Generally, [HN18] assumption of risk in the sports context involves primary assumption of risk because the plaintiff has assumed certain risks inherent in the sport or activity.” Id.
[HN19] Under comparative fault, if the plaintiff’s injury is the result of a risk inherent in the sport in which he was participating, the defendant is relieved from liability on the grounds that by participating in the sport, the plaintiff assumed the risk and the defendant never owed the plaintiff a duty to protect him from that risk. If, on the other hand, the plaintiff’s injury is the result of negligence on the part of the defendant, the issue regarding the plaintiff’s assumption of that risk and whether it was a reasonable assumption of risk, is an element of fault to be compared to the defendant’s negligence by the jury.
Id. at 263-64. [HN20] The basis of implied primary assumption of risk is the plaintiff’s consent to accept the risk. Id. “If the risks of the activity are perfectly obvious or fully comprehended, plaintiff has consented to [**17] them and defendant has performed [*396] his or her duty.” Martin v. Buzan, 857 S.W.2d 366, 369 (Mo. App. 1993).
[HN21] As a “defending party,” Respondent may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of each of the facts necessary to support its properly pleaded affirmative defense and that those factors show Respondent is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 381. In order for Respondent to have established its right to summary judgment based upon implied primary assumption of the risk, Respondent had to show that there was no genuine dispute that the Appellants’ injuries were the result of falling on ice, and that ice was a risk inherent in the sport of skiing. While there is no question that the Appellants’ injuries were a result of falling on ice, there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing. Respondent notes that many states including Colorado, Idaho, Maine, Michigan, Montana, New Hampshire, New Jersey, New Mexico, Ohio, and West Virginia have all enacted statutes which codify assumption of the risk as is pertains to the sport [**18] of snow skiing. However, there is no such statute in Missouri, and this court is not willing to say, as a blanket rule, that all ice encountered on Respondent’s property is an inherent risk in the sport of snow skiing. There is a genuine dispute as to the nature of the ice. Was it “large areas of thick impenetrable ice hidden under a dusting of snow on the ski slopes,” as the Appellants claim, or was it ice on the slopes that the Appellants had been over several times prior to falling. These are questions which must be answered by a fact-finder. [HN22] While the basis of implied primary assumption of the risk is the plaintiff’s consent to accept the risk, the plaintiff must be aware of the facts that create the danger and they must appreciate the danger itself. Shepard, 904 S.W.2d at 264. Thus, the standard is a subjective one: “what the particular plaintiff in fact sees, knows, understands and appreciates.” Id. Here, the record does not include evidence that the Appellants were aware of the facts that created the danger or that they appreciated the danger itself. In fact, there was only evidence to the contrary, that the Appellants did not know, understand or appreciate [**19] the ice because it was under snow.
Therefore, we find that summary judgment cannot, on this record, be based upon express or implied primary assumption of the risk.
III. Release
Respondent argues on appeal that the “Rental Form” operated as a release. Respondent did not plead release as an affirmative defense in its answer. [HN23] Release is an affirmative defense that must be pleaded in an answer. Rule 55.08. Failure to plead an affirmative defense constitutes a waiver of the defense. Leo’s Enterprises, Inc. v. Hollrah, 805 S.W.2d 739, 740 (Mo. App. 1991). Since Respondent did not plead the affirmative defense of release, summary judgment would not be proper based upon the theory of release.
Artificial Snow
We affirm the trial court’s grant of summary judgment on Count III of the Appellants’ petitions. The Appellants state in Count III of their petitions that Respondent created a dangerous condition by making artificial snow and dispersing it on the ski slope and that Respondent owed a duty to them as business invitees not to create dangerous conditions on the premises. The trial court was correct in granting Respondent’s summary judgment [**20] on Count III, because [HN24] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Peterson, 920 S.W.2d at 933. A condition is open and obvious if invitees should reasonably be expected to discover it. Id. Respondent could be liable only if it was not reasonable [*397] for it to expect the Appellants to see and appreciate the risk and to take reasonable precautions. Harris, 857 S.W.2d at 226. Artificial snow at Snow Creek is an open and obvious condition, and it is reasonable for Respondent to expect the Appellants to see and appreciate the risk of artificial snow and to take appropriate precautions.
Conclusion
The judgment of the trial court is affirmed as to Count III of each of the petitions. It is reversed and remanded for further proceedings on counts I, II, & IV.
Albert A. Riederer, Judge
Lowenstein and Stith, JJ., concur.
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By Recreation Law Rec-law@recreation-law.com James H. Moss Jim Moss
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