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New Mexico interpretation of the New Mexico Ski Safety Act for injuries a beginner received leaving a ski lesson

I’m not sure why everyone needs to test skier safety acts. Here, the plaintiff admitted he could not ski, left the ski lesson and skied down the hill injuring him. So he sues the ski area?

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

Plaintiff: George Philippi

Defendants: Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation

Plaintiff Claims: negligence and violation of the New Mexico Ski Safety Act

Defendant Defenses: New Mexico Ski Safety Act and statutory assumption of the risk

Holding: for the defendants

This is a pretty simply case. The plaintiff is a body builder. He took a ski lesson from the defendants and was not good at skiing. He was unable to master turning or other maneuvers and fell repeatedly during the lesson. The plaintiff told his instructors to stop the lesson because he was frustrated and tired. Allegedly following the instructor’s suggestions he skied down the hill into a funnel where he fell and was injured his right leg and knee.

The plaintiff sued in Federal District Court, and his claims were dismissed based on a motion for summary judgment. He appealed to the Tenth Circuit Court of Appeals. New Mexico is part of the Tenth Circuit, one of the appellate courts in the federal system based in Colorado. Consequently, this court is familiar with skiing.

Summary of the case

The plaintiff argued two issues on his appeal. First, the lower court misconstrued and misapplied the doctrine of primary assumption of the risk as set forth in the New Mexico Ski Safety Act. His second argument was the act incorporates comparative negligence principles, and thus the act cannot act as a complete bar to his recovery.

The court looked at the first claim and held the New Mexico Ski Safety Act imposes no duty on part of the ski area to protect the plaintiff, a novice skier, from the “inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope.”

The New Mexico Ski Safety Act states that a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The skier assumes the risk of skiing and the legal responsibility of any injury to person or property from skiing. The act then lists the risks the skier assumes, as most acts do.

§ 24-15-10.  Duties of the skiers

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

The plaintiff argued the risks he encountered were not obvious to him because he was a novice skier.

Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope.

The plaintiff argued the ski area had a duty to warn him of obstacles in the lower portion of the slope. The plaintiff argued the obstacles were not plainly visible to him as a novice skier and created hazards to him and the skiing public. The Act imposes an affirmative duty on ski areas to warn or “correct particular hazards or dangers known to the operator where feasible to do so.”

However, the court found that allegations alone are not enough to proceed with his argument. “The party resisting [summary judgment] may not rest on the bare allegations or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.”

However, allegations alone are not enough to sustain an argument and a motion for summary judgment. The plaintiff must have more. Here the court said he needed to identify particular hazards or dangers which the defendant knew about and failed to warn the plaintiff about.

The second issue was the statute incorporated the comparative negligence statute of New Mexico and therefore, could not act as a complete bar to the plaintiff. If you remember comparative negligence, it states that the defense of assumption of the risk is gone. Instead of a plaintiff assuming the risk and his claims being barred, the jury determines how much of the plaintiff’s acts caused his injuries and assigns a percentage of fault to the plaintiff and the defendant. If the defendant’s degree of fault is greater than the plaintiff’s that percentage of fault is applied to the total damages, and the plaintiff takes that percentage of the money as a judgment.

By arguing comparative negligence applies here; the plaintiff is arguing that his case must, by law be heard by a jury to apply the percentage of fault. However, the court found that the statute did not require the use of comparative negligence because the statute protected the ski area from liability. The plaintiff could still assume the risk of his injuries and thus be barred from suing.

So Now What?

The plaintiff argued that the ski area “ski instructor’s manual” failed to point out the need to warn students of dangers and alert them to safety issues. It is interesting to use a ski area manual to try an argument from the lack of a point to train in the ski area manuals.

This argument in the case is what caught my attention. In many cases, we write manuals to help instruct employees to work and keep our guests safe. Here, that information in the manual might have changed the outcome of this case.

If the point had been in the manual, then would the ski area been liable if they had not pointed out the “hazards” on the slope to the plaintiff?

However, you need to think about that issue. How big would a manual need to be to instruct your employees to point out the hazards of the sport or the slope? What about the hazards of any outdoor recreation program or business. Would you have to identify every root crossing a trail or all the branches that may hang low for your taller guests?

The New Mexico Ski Safety Act is well-written and specifically lists the risk a skier assumes. It does not require a balancing test, only one answer. Did the injury the plaintiff receives occur because of the risks the plaintiff assumed stated in the act? In this case, he did. Nor did the statute require the ski area to do any more than identify or correct those risks that could not be seen by a skier of average ability and skill.

For more on comparative negligence see 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 and Sometimes you want too much, sometimes you are greedy: WI plaintiff’s lawyers are killing their income source.

What do you think? Leave a comment.

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Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

George Philippi, Plaintiff-Appellant, v. Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation, a New York corporation, Defendants-Appellees.

No. 91-2253

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

961 F.2d 1492; 1992 U.S. App. LEXIS 6973

April 17, 1992, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-90-1178-JC). D.C. Judge JOHN E. CONWAY

DISPOSITION: DENIED. AFFIRMED

COUNSEL: Submitted on the briefs.

Patrick A. Casey and David C. Ruyle, Patrick A. Casey, P.A., Santa Fe, New Mexico, for the Plaintiff-Appellant.

Joe L. McClaugherty and Cameron Peters, McClaugherty, Silver & Downs, P.C., Santa Fe, New Mexico, for the Defendants-Appellees.

JUDGES: Before MOORE, TACHA, and BRORBY, Circuit Judges.

OPINION BY: TACHA

OPINION

[*1493] TACHA, Circuit Judge.

Plaintiff, George Philippi, appeals a district court order granting summary judgment to the defendants. 1 Philippi argues that the district court erred in granting the defendants summary judgment on Philippi’s negligence action. Philippi also argues that two unresolved issues of New Mexico law may be determinative in this case and urges this court to certify these issues to the Supreme Court of the State of New Mexico. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

[**2] In January of 1984, Philippi suffered a physical injury during the course of a skiing lesson at Sipapu Ski Area in New Mexico. Philippi, a body builder, injured his right leg and knee while attempting to negotiate the “Lower Bambi” run at Sipapu. Philippi brought this action against the defendants claiming, among other things, that the defendants acted negligently in violation of the New Mexico Ski Safety Act, N.M. Stat. Ann. 24-15-1 to 24-15-14 (hereinafter referred to as “the Act” or “the Ski Safety Act”).

In their motion for summary judgment, the defendants argued that they were entitled to judgment as a matter of law because the Ski Safety Act is Philippi’s only remedy and because Philippi’s claim is barred by his statutory assumption of the risks of skiing and his own breaches of duty under the Act. As an alternative basis for summary judgment, the defendants argued that they did not breach any of their duties under the Act. Without stating the basis of its ruling, the district court found that the motion for summary judgment was “well taken and should be granted.”

Philippi raises two claims on appeal. First, he argues that the district court misconstrued and misapplied the doctrine [**3] of primary and secondary assumption of the risk, as embodied in the Ski Safety Act. Second, Philippi argues that even if his conduct constitutes secondary assumption of the risk, the Act embodies comparative negligence principles, and his conduct, therefore, cannot totally bar his recovery under the Act. Philippi urges us to certify both of these issues to the New Mexico Supreme Court.

Although the basis of the district court’s ruling is not evident, [HN1] “we may affirm the granting of summary judgment if any proper ground exists to support the district court’s ruling.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988). We find it unnecessary to reach the merits of Philippi’s arguments on appeal because both arguments presuppose that, but for the district court’s alleged errors in applying the doctrines of assumption of the risk and comparative negligence, the district court would have concluded that the defendants owed a duty to Philippi. Viewing the facts alleged in the complaint and in opposition [*1494] to the summary judgment motion in the light most favorable to Philippi, we hold as a matter of law that the defendants owed no duty to protect Philippi from the harm [**4] he allegedly sustained. Because Philippi cannot demonstrate a duty owed by the defendants, we find certification of the issues on appeal inappropriate, as these issues are not determinative of this action.

This case requires us to determine whether the Ski Safety Act imposes a duty on a ski area operator to warn, or in some way protect, a novice skier from the inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope. Philippi’s injury occurred during a skiing lesson. According to the amended complaint, Philippi fell repeatedly during the lesson and, despite the ski instructors’ demonstrations and instructions, he was unable to master turning and other skiing maneuvers. Philippi allegedly informed the instructors that he wanted to stop the lesson because he was frustrated and tired. The instructors encouraged Philippi to continue skiing to the end of the run because the remaining terrain was “relatively easy,” and there was “no place to stop or stand.” The complaint alleges that “following the instructions of one of the individual Defendants, Plaintiff entered onto a narrow, steep, ungroomed slope which required numerous turns to navigate. Plaintiff [**5] could not see obstacles on this slope until he was upon them and too late to avoid them. During this portion of the instruction Plaintiff fell and severely injured his right leg and knee. . . .”

[HN2] Under section 24-15-10(B) of the Ski Safety Act, a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The Act goes on to state that a skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing areas, including any injury caused by . . . variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees or other forms of forest growth or debris . . . .

[HN3] The Act specifically excludes from the scope of a skier’s assumption of risk “any injuries . . . resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 [of the Act].” Id.

Philippi maintains that even though he assumed the obvious and necessary risks associated with skiing, including any injury caused by variations in terrain, the risks he encountered were not “obvious and necessary” [**6] to him as a novice skier. The Act imposes an affirmative duty on ski area operators “to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Id. 24-15-7(I). Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope. Thus, Philippi alleges that under section 24-15-7(I) of the Act, the defendants had a duty to warn him of the obstacles of the lower portion of the ski slope — obstacles “which were not plainly visible and which created an immediate hazard to [Philippi] and the skiing public.”

In response to the defendants’ argument in support of summary judgment that the defendants owed no duty to Philippi, Philippi bore the burden of making a showing sufficient to establish the existence of the defendants’ duty. See High Plains Natural Gas v. Warren Petroleum Co., 875 F.2d 284, 290-91 (10th Cir. 1989). [HN4] “The party resisting [summary judgment] may not rest on the bare allegations [**7] or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.” Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989).

Philippi claims that the deposition testimony and affidavits, along with facts alleged in his complaint, demonstrate a genuine issue of material fact concerning the defendants’ violation of section 24-15-7(I) of the Act. Philippi points out that, despite the instructors’ awareness of Philippi’s inability [*1495] to master even the simplest skiing maneuvers, the instructors “failed to help” and “failed to warn” Philippi of the risks of the lower portion of the Bambi trail. Further, Philippi made some showing that the defendants were aware that novice skiers had “problems” on the portion of the trail on which Philippi’s injury occurred. In addition, Philippi points to the failure of the Sipapu ski instructor’s manual to advise the instructors of the need to warn students of dangers and alert them to safety considerations. Philippi argues that reasonable minds could differ on whether these circumstances give rise to a duty on behalf of the defendants and, therefore, that the issue should [**8] be left to the finder of fact.

[HN5] Under New Mexico law, however, the question of whether a defendant owes a duty to a particular plaintiff is a question of law to be determined by the court. Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 (N.M. 1990); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 729 (N.M. 1984). Under section 24-15-7(I) of the Ski Safety Act, the defendants only have the duty to warn of or correct “particular hazards or dangers.” Philippi cannot rest on the bare allegation in his amended complaint that the defendants were aware of and failed to warn of “particular hazards or dangers.” Nothing in Philippi’s amended complaint, deposition or affidavits identifies any “particular hazard or danger” known to the defendants. Philippi merely asserts that his injury was caused by the defendants’ failure to warn him individually of the general conditions of the terrain on the lower portion of the beginner slope. Allegations of “thin and bare” terrain on a “narrow, steep and ungroomed” slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi. Likewise, allegations of the defendants’ knowledge of injuries [**9] to novice skiers on that same portion of the slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi.

The purpose of the Ski Safety Act is to define “those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes and for which there can be no recovery.” N.M. Stat. Ann. 24-15-2. Philippi assumed the risk for variations in terrain, id. 24-15-10, and Philippi had the duty to ski within the limits of his own ability. Id. Section 24-15-13 of the Act clearly states that a skier cannot recover for injuries or damages resulting from the skier’s own violation of his duties, as set forth in section 24-15-10. In our view, the Act allocates to the skier the risks for the type of injury Philippi alleges. In light of the language and purpose of the New Mexico Ski Safety Act, we conclude as a matter of law that [HN6] the scope of the duty imposed on ski operators in section 24-15-7(I) of the Act is not broad enough to encompass the duty to provide a general warning to a novice skier that, because of the skier’s limited abilities, portions of a beginner [**10] slope may be dangerous.

The motion to certify questions of state law is DENIED and the order of the district court is AFFIRMED.

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

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

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

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

The plaintiff sued for:

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

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

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

So?

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

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

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

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

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

Section 24-15-7(C) provides:

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

* * *  

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

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

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

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

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

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

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

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

So Now What?

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

What do you think? Leave a comment.

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New Mexico Skier Safety Act

New Mexico Skier Safety Act

Chapter 24.  Health and Safety

Article 15.  Ski Safety

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Contents

§ 24-15-1.  Short title. 1

§ 24-15-2.  Purpose of act1

§ 24-15-3.  Definitions. 2

§ 24-15-4.  Insurance. 2

§ 24-15-5.  Penalty. 3

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

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

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

§ 24-15-9.  Duties of passengers. 5

§ 24-15-10.  Duties of the skiers. 5

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

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

§ 24-15-13.  Liability of skiers. 7

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

§ 24-15-1.  Short title

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

§ 24-15-2.  Purpose of act

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

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

§ 24-15-3.  Definitions

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

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

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

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

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

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

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

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

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

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

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

§ 24-15-4.  Insurance

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

SKI SAFETY ACT

Liability insurance

Limits of Liability

Required Minimum Coverage’s

For Injuries, Death or Damages

Kind and Number of Lifts Operated

Limits for Bodily Injury to or Death of Property One Person Damage

Limits for Bodily Injury to or Death of All Persons Injured or Killed in Any One Accident

Property Damage

Not more than three surface lifts

$ 100,000

$ 300,000

$ 5,000

Not more than three ski lifts, including one or more chair lifts

250,000

500,000

25,000

More than three ski lifts or one or more tramways

500,000

1,000,000

50,000.

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

§ 24-15-5.  Penalty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 24-15-9.  Duties of passengers

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

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

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

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

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

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

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

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

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

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

§ 24-15-10.  Duties of the skiers

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

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

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

D.  No person shall:

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

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

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

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

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

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

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

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

§ 24-15-12.  Liability of passengers

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

§ 24-15-13.  Liability of skiers

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

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

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

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

Created January 9, 2012

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Four State Supreme Courts Reverse their Positions on Release

Releases are the foundation of most adventure outfitters program to prevent lawsuits. Dependent upon your base of operation and/or your area of operation a release or waiver is the best way to inform your guests of the risks and stop lawsuits. However, the law concerning releases has changed dramatically in four states over the past 18 months.

Changes started February of 2005 when the Wisconsin Supreme court overturned its law on releases. In a case involving a drowning at a

English: Seal of the Wisconsin Supreme Court

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health club, Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 the Wisconsin Supreme Court set up a series of requirements for releases which will be impossible to meet. Each of the requirements allows the guest to invalidate the release or takes the legal teeth out of the release. The final requirement is a bargain for exchange requirement. This means the outfitter must offer the guest the opportunity to take the trip without signing a release for an additional charge. The additional charge to enjoy the adventure without signing a release must only be a nominal amount; however that does not make economic sense. (For a more thorough analysis see the Outdoor Recreation Law Review
Wisconsin Supreme Court decision threatens businesses relying on releases.)

Arizona Supreme Court

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In Arizona, in a race car mishap, the Arizona Supreme Court took an approach to releases no other state has adopted. In Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53, the Arizona Supreme Court held that releases, written contracts, are only an acknowledgement of risk. As such, the trier of fact, normally the jury, must decided whether the injured patron understood the risk of the activity and the release is additional, but not substantive proof of the knowledge. As such, releases in Arizona are not just proof of acknowledgement of risk rather than a contract to prevent a lawsuit. In the future, a defendant relying upon a release will be forced to go to trial to prove the injured guest understood the risk of the activity that injured him. (See the Outdoor Recreation Law Review
Surprising Arizona Supreme Court Decision Further Endangers Release Language.)

The New Mexico Supreme Courtdetermined that a statute designed to protect the Equine industry prevented the use of a release by a stable.

New Mexico Supreme Court

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In Berlangieri et al. v. Running Elk Corporation, et al., 48 P. 3d 70 (N.M. App. April, 2002 the New Mexico Supreme Court stated the New Mexico Equine Liability act provided the only protection for equine outfitters and therefore it prevented the use of a release. This decision is limited to only equine activities; however a similar decision in West Virginia was the beginning of a series of decisions invalidating releases. This is an example of a statute that was meant to protect an industry doing more harm than good. (See the Outdoor Recreation Law Review
Release of Liability Found to Violate Public Policy.)

Connecticut Supreme Court

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The final decision is a Connecticut Supreme Court decision, Hanks v. Powder Ridge Restaurant Corporation et al. 276 Conn. 314, 2005 Conn. LEXIS 500 that overruled a case with the identical fact situation six years earlier. In this case a patron at a tubing hill signed a release and was injured tubing. He sued and the Connecticut Supreme Court overruled itself stating releases were no longer valid in the state because it removed the incentive for the tubing operator to keep the premises safe. The Supreme Court held that releases for recreational activities violate public policy. Public policy is the protection the courts extend to the public to protect them when they cannot protect themselves. Those protections are normally limited to those necessities of live that the public cannot live without such as utilities or public transportation. (See the Outdoor Recreation Law Review Connecticut Supreme Court takes yet another bite out of releases with latest decision.)

All of these decisions are discouraging; however there are methods to change the results for a particular outfitter. The easiest and most important way is by using an effective Jurisdiction and Venue clause in a release. Jurisdiction means the law that will be applied and Venue means the location of the court that will hear the case. If you are operating in any of these four states, or another state that prohibits the use of a release, you can specify in the release the state where the case will be heard and the law that will be applied.

For Additional Analysis of these cases or to read the legal opinion, go to the Outdoor Recreation and Fitness Law Review.

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