West Virginia Whitewater Responsibility Act.

West Virginia Whitewater Responsibility Act. 

Chapter 20.  Natural Resources.

Article 3B. Whitewater Responsibility Act.

GO TO WEST VIRGINIA STATUTES ARCHIVE DIRECTORY

W. Va. Code Ch. 20, Art. 3B Notes (2014)

Article 3B. Whitewater Responsibility Act. Notes

A.L.R. references.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 A.L.R.5th 513.

§ 20-3B-1.  Legislative purposes.

Every year, in rapidly increasing numbers, the inhabitants of the State of West Virginia and nonresidents are enjoying the recreational value of West Virginia rivers and streams. The tourist trade is of vital importance to the State of West Virginia and the services offered by commercial whitewater outfitters and commercial whitewater guides significantly contribute to the economy of the State of West Virginia. The Legislature recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.

Exemption from tort liability.

Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Quoted in

River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

Cited in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

W. Va. Law Review.

Fahey, “Landlord Liability in West Virginia for Criminal Acts on the Premises,” 98 W. Va. L. Rev. 659 (1996).

§ 20-3B-2.  Definitions.

Unless the context of usage clearly requires otherwise:

(a) “Commercial whitewater outfitter” means any person, partnership, corporation or other organization, or any combination thereof, as defined in section twenty-three [§ 20-2-23], article two of this chapter.

(b) “Commercial whitewater guide” means any person as defined in section twenty-three [§ 20-2-23], article two of this chapter.

(c) “Participant” means any person using the services of a commercial whitewater outfitter or commercial whitewater guide on any river, portions of rivers or waters of the State.

Quoted in

Murphy v. North Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

§ 20-3B-3.Duties of commercial whitewater outfitters and commercial whitewater guides.

(a) All commercial whitewater outfitters and commercial whitewater guides offering professional services in this State shall provide facilities, equipment and services as advertised or as agreed to by the commercial whitewater outfitter, commercial whitewater guide and the participant. All services, facilities and equipment provided by commercial white-water outfitters and commercial whitewater guides in this State shall conform to safety and other requirements set forth in article two [§§ 20-2-1 et seq.] of this chapter and in the rules promulgated by the commercial whitewater advisory board created by section twenty-three-a [§ 20-2-23a], article two of this chapter.

(b) In addition to the duties set forth in subsection (a) of this section, all commercial whitewater guides providing services for whitewater expeditions in this state shall, while providing such services, conform to the standard of care expected of members of their profession.

Exemption from tort liability.

This section imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Whitewater rafting not governed by maritime law.

In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

Cited in

Pingley v. Perfection Plus Turbo-Dry, LLC, 2013 W. Va. LEXIS 422 (Apr 26, 2013).

§ 20-3B-4.Duties of participants.

(a) Participants have a duty to act as would a reasonably prudent person when engaging in recreational activities offered by commercial whitewater outfitters and commercial whitewater guides in this State.

(b) No participant may:

(1) Board upon or embark upon any commercial whitewater expedition when intoxicated or under the influence of nonintoxicating beer, intoxicating beverages or controlled substances; or

(2) Fail to advise the trip leader or the trip guide of any known health problems or medical disability and any prescribed medication that may be used in the treatment of such health problems during the course of the commercial whitewater expedition; or

(3) Engage in harmful conduct or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person or personal property; or

(4) Perform any act which interferes with the safe running and operation of the expedition, including failure to use safety equipment provided by the commercial whitewater outfitter or failure to follow the instructions of the trip leader or trip guide in regard to the safety measures and conduct requested of the participants; or

(5) Fail to inform or notify the trip guide or trip leader of any incident or accident involving personal injury or illness experienced during the course of any commercial whitewater expedition. If such injury or illness occurs, the participant shall leave personal identification, including name and address, with the commercial whitewater outfitter’s agent or employee.

§ 20-3B-5.Liability of commercial whitewater outfitters and commercial whitewater guides.

It is recognized that some recreational activities conducted by commercial whitewater outfitters and commercial whitewater guides are hazardous to participants regardless of all feasible safety measures which can be taken.

(a) No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two [§§ 20-2-1 et seq.] of this chapter, by the rules of the Commercial Whitewater Advisory Board, or by the duties placed on such commercial whitewater outfitter or commercial whitewater guide by the provisions of this article.

(b) The limitations on liability created by this article apply only to commercial whitewater outfitters li-censed under the provisions of article two of this chapter and to commercial whitewater guides who are agents or employees of licensed commercial whitewater outfitters, and only when the commercial whitewater outfitter or commercial whitewater guide is acting within the course of his employment.

Exemption from tort liability.

Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).

Whitewater rafting not governed by maritime law.

In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).

 

 

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West Virginia Ski Safety Statute

West Virginia Code Annotated

Chapter 20.  Natural Resources.

Article 3A.  Skiing Responsibility Act.

GO TO WEST VIRGINIA STATUTES ARCHIVE DIRECTORY

W. Va. Code Ch. 20, Art. 3A Note  (2012)

Ch. 20, Art. 3A Note

NOTES: 

Constitutionality.

This act, which immunizes ski area operators from tort liability for the inherent risks in the sport of skiing which are essentially impossible for the operators to eliminate, does not violate equal protection principles of W. Va. Const., art. III, § 10 or of U.S. Const., amend. 14. The act similarly does not constitute special legislation in violation of W. Va. Const., art. VI, § 39. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

This act does not violate the certain remedy provision of W. Va. Const., art. III, § 17. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

Purpose.

The purpose of this act was to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

Common-law cause of action.

This act does not provide an alternative remedy for the repealed common-law cause of action for damages resulting from the inherent risks of skiing which the operator cannot eliminate. Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

   HIERARCHY NOTES:

   Ch. 20 Note

§ 20-3A-1.  Legislative purpose.

  The Legislature finds that the sport of skiing is practiced by a large number of citizens of West Virginia and also attracts to West Virginia a large number of nonresidents, significantly contributing to the economy of West Virginia. Since 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 this article 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 for which there can be no recovery.

HISTORY: 1984, c. 163.

NOTES: W. Va. Law Review.

Fahey, “Landlord Liability in West Virginia for Criminal Acts on the Premises,” 98 W. Va. L. Rev. 659 (1996).

Constitutionality.

The West Virginia Skiing Responsibility Act, which immunizes ski area operators from tort liability for the inherent risks of skiing that are essentially impossible for the operators to eliminate, does not violate equal protection principles of W. Va. Const., art. III, § 10, nor does it constitute special legislation in violation of art. VI, § 39. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).

Purpose.

The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).

Quoted in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

   HIERARCHY NOTES:

   Ch. 20 Note

   Ch. 20, Art. 3A Note

§ 20-3A-2.  Definitions.

  Unless the context of usage clearly requires otherwise:

   (a) “Aerial passenger tramway” 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, conveyor lift or similar device; or a fiber rope tow.

   (b) “Competitor” means a skier actually engaged in competition, a special event, or training or practicing for competition or a special event on any portion of the area made available by the ski area operator.

   (c) “Freestyle terrain” includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes, and all other constructed and natural features, half-pipes, quarter pipes, and freestyle-bump terrain.

   (d) “Passenger” means any person who is lawfully using an aerial passenger tramway, or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.

   (e) “Ski area” means any property owned or leased and under the control of the ski area operator or operators within West Virginia.

   (f) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, or the State of West Virginia, or any political subdivision thereof, who has operational responsibility for any ski area or aerial passenger tramway.

   (g) “Skiing area” means all ski slopes and trails not including any aerial passenger tramway.

   (h) “Skier” means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing in locations designated as the ski slopes and trails, but does not include a passenger using an aerial passenger tramway.

   (i) “Skiing” means sliding downhill or jumping on snow or ice on skis, a toboggan, a sled, a tube, a snowbike, a snowboard, or any other device by utilizing any of the facilities of the ski area.

   (j) “Ski slopes and trails” means all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing in areas designated for that type of skiing activity. Ski slopes and trails shall be designated on trail maps, if provided, and by signs indicating to the skiing public the designated skiing activity for skiing areas.

HISTORY: 1984, c. 163; 2006, c. 204.

NOTES: Effect of amendment of 2006.

Acts 2006, c. 204, effective June 8, 2006, inserted “conveyor lift” in (a); added (b) and (c); redesignated former (b) through (f) as (d) through (h); inserted “ski” in (g); substituted “in locations designated as” for “by utilizing” in (h); added (i); redesignated former (g) as (j); and in (j), inserted “all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and” in the first sentence, added “in areas designated for that type of skiing activity” at the end of the first sentence, and added the last sentence; and made a minor stylistic change.

Quoted in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

§ 20-3A-3.  Duties of ski area operators with respect to ski areas.

  Every ski area operator shall:

   (1) Mark all trail maintenance vehicles and 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.

   (2) Mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails.

   (3) Mark conspicuously the top or entrance to each ski slope, trail or area to designate open or closed and relative degree of difficulty using the appropriate symbols approved by the national ski areas association as of the effective date of this article and as may thereafter be modified by the association.

   (4) 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 thereon in accordance with the aforementioned symbols’ code and containing a key to the code in accordance with designations in subdivision (3) herein.

   (5) Designate by trail board or otherwise which trails or slopes are open or closed.

   (6) Place, or cause to be placed, whenever snow grooming or snowmaking 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 of the trail or slope.

   (7) Post notice at prominent locations of the requirements of this article concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices.

   (8) Maintain the ski areas in a reasonably safe condition, except that such operator shall not be responsible for any injury, loss or damage caused by the following: Variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with subdivision two of this section.

   (9) When no certified ambulance service is available in the vicinity, have on duty at or near the skiing area, during all times that skiing areas are open for skiing, at least one trained and currently certified emergency medical technician.

HISTORY: 1984, c. 163.

NOTES: Cross references.

Liability of ski area operators, § 20-3A-6.

Editor’s notes.

Concerning the reference in (3) to “the effective date of this article,” Acts 1984, c. 163, which enacted this article, provided that the act take effect June 8, 1984.

Construction.

Where variations in the terrain or ice conditions in the form of ungroomed snow caused injury to plaintiff, defendant ski area operator was not liable. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).

The West Virginia Skiing Responsibility Act, §§ 20-3A-1 et seq., does not require the posting of warnings concerning the presence of ungroomed snow or require that ski trails be closed because of ungroomed snow. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).

Purpose of act.

The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).

Applicability.

Question of whether the general maintenance clause in subsection (8) is applicable to snow-making activity and, if so, whether the defendant negligently engaged in snow-making activity and whether the alleged dangerous condition could have been eliminated if the defendant had reasonably maintained the snow-making equipment presented questions of fact which compelled that defendant’s motion for summary judgment be denied. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).

Jury instructions.

Jury instructions which cited this section were not weighted impermissibly in favor of the defendant. The degree that the instructions reflected any lack of balance was due to the content of state law, not to the misstatement of relevant legal principles by the court, and the statutory reference was not extraneous. Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1995 U.S. App. LEXIS 7647 (4th Cir. 1995).

Quoted in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

   HIERARCHY NOTES:

   Ch. 20 Note

   Ch. 20, Art. 3A Note

§ 20-3A-4.  Responsibilities of passengers.

  No passenger shall:

   (1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;

   (2) Drop, throw or expel any object from an aerial passenger tramway;

   (3) Perform any act which interferes with the running or operation of an aerial passenger tramway;

   (4) Enter the boarding area of or use any aerial passenger tramway without requesting and receiving instruction on its use from the ski area operator, unless the passenger has the ability to use it safely without instruction;

   (5) Engage in any harmful conduct, or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person; or

   (6) Embark on an aerial passenger tramway without the authority, express or implied, of the ski area operator.

HISTORY: 1984, c. 163.

NOTES: Cross references.

Liability of passengers, § 20-3A-7.

Quoted in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

   HIERARCHY NOTES:

   Ch. 20 Note

   Ch. 20, Art. 3A Note

§ 20-3A-5.  Duties of skiers.

  (a) It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken. Each skier expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in the sport of skiing including, but not limited to, any injury, loss or damage caused by the following: Variations in terrain including freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with section three [§ 20-3A-3] of this article. Each skier shall have the sole individual responsibility for knowing the range of his or her own ability to negotiate any ski 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. If while actually skiing, any skier collides with any object or person, except an obviously intoxicated person of whom the ski area operator is aware, the responsibility for such collision shall be solely that of the skier or skiers involved and not that of the ski area operator.

(b) No person shall place any object in the skiing area or on the uphill track or any aerial passenger tramway which may cause a passenger or skier to fall.

(c) No skier shall cross the track of any T-bar lift, J-bar lift, platter lift, conveyor lift or similar device, or a fiber rope tow except at a designated location, nor shall any skier place any object in such an uphill track.

(d) No person involved in a skiing accident shall depart the ski area without leaving personal identification, including name and address, with an employee of the ski area operator or without notifying the proper authorities or without obtaining assistance when that person knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.

(e) A ski or snowboard used by a skier while skiing or snowboarding shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard detach from the skier. No skier shall fail to wear retention straps or other devices to help prevent runaway skis or snowboards. This requirement shall not apply to cross country skis.

(f) Each skier has the duty to maintain control of his or her speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him or her.

(g) No skier shall ski on a ski slope or trail that has been posted as “Closed.”

(h) No skier shall use any ski slope while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance or other drug or while such person is under the influence of alcohol or any controlled substance or other drug.

(i) Each skier has the duty to heed all posted information and other warnings.

(j) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, the skier shall have the duty to avoid moving skiers already on the ski slope or trail.

HISTORY: 1984, c. 163; 2006, c. 204.

NOTES: Effect of amendment of 2006.

Acts 2006, c. 204, effective June 8, 2006, redesignated the former first two paragraphs as (a), redesignated the former third paragraph as (b) through (e), and added (f) through (j); in (a), inserted “including freestyle terrain” in the second sentence and inserted “ski” preceding “slope” in the third sentence; in (c), substituted “No skier shall cross ” for “or which crosses the track,” inserted “conveyor lift,” and added “nor shall any skier place any object in such an uphill track”; inserted “with an employee of the ski area operator” in (d); added the first and last sentences in (e); and made minor stylistic changes.

Cross references.

Liability of skiers, § 20-3A-8.

A.L.R. references.

Skier’s liability for injuries to or death of another person, 75 A.L.R.5th 583.

Construction.

Where variations in the terrain or ice conditions in the form of ungroomed snow, caused injury to plaintiff defendant ski area operator was not liable. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).

This article does not require the posting of warnings concerning the presence of ungroomed snow or require that ski trails be closed because of ungroomed snow. Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).

Purpose of act.

The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).

Skiing is hazardous.

Trial court properly granted summary judgment to the 12-year-old skier’s parents on the injured party’s claim that they were liable for injuries she sustained when the 12-year-old ran into her on the beginner’s slopes at a West Virginia ski resort; not only did the injured party not present a sufficient forecast of evidence to overcome the rebuttable presumption that the 12-year-old skier was incapable of negligence, but her claims that he could have done several things to avoid the collision was at odds with West Virginia law that recognized skiing was a recreational sport that was hazardous to skiers regardless of all feasible safety measures which could be taken. Frank v. Funkhouser, 2005 N.C. App. LEXIS 515, 169 N.C. App. 108, 609 S.E.2d 788 (Mar 15, 2005).

Quoted in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).

§ 20-3A-6.  Liability of ski area operators.

  Any ski area operator shall be liable for injury, loss or damage cause by failure to follow the duties set forth in section three [§ 20-3A-3] of this article where the violation of duty is causally related to the injury, loss or damage suffered. A ski area operator shall not be liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of such operator, nor shall a ski area operator be liable for any injury, loss or damage cause by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway. Every ski area operator shall carry public liability insurance in limits of no less than one hundred thousand dollars per person, three hundred thousand dollars per occurrence and ten thousand dollars for property damage.

HISTORY: 1984, c. 163.

NOTES: 

Quoted in

Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991); Pinson v. Canaan Valley Resorts, Inc., 196 W. Va. 436, 473 S.E.2d 151, 1996 W. Va. LEXIS 64 (1996).

Cited in

Whitlow v. Board of Educ., 190 W. Va. 223, 438 S.E.2d 15, 1993 W. Va. LEXIS 169 (1993).

   HIERARCHY NOTES:

   Ch. 20 Note

   Ch. 20, Art. 3A Note

§ 20-3A-8.  Liability of skiers.

  Any skier shall be liable for injury, loss or damage resulting from violations of the duties set forth in section five [§ 20-3A-5].

HISTORY: 1984, c. 163.

NOTES: A.L.R. references.

Skier’s liability for injuries to or death of another person, 75 A.L.R.5th 583.

Purpose of act.

The purpose of the West Virginia Skiing Responsibility Act is to eliminate or curtail the exposure of ski area operators to liability for the inherent risks of skiing. Hardin v. Ski Venture, Inc., 848 F. Supp. 58, 1994 U.S. Dist. LEXIS 4233 (N.D.W. Va. 1994).

   HIERARCHY NOTES:

   Ch. 20 Note

   Ch. 20, Art. 3A Note

§ 20-3A-9.  Competition.

  (a) The ski area operator shall, prior to use of any portion of the area made available by the ski area operator, allow each competitor the opportunity to conduct a reasonable visual inspection of the ski slopes and trails or freestyle terrain used in the competition.

(b) The competitor shall be held to assume the risk of all ski slopes and trails or freestyle terrain conditions including, but not limited to, weather and snow conditions; obstacles, course or feature location, construction or layout, freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used. No liability shall attach to a ski area operator for injury or death to any competitor caused by course, venue, or area conditions that a visual inspection should have revealed or by collisions with other competitors.

HISTORY: 2006, c. 204.

NOTES: Effective dates.

Acts 2006, c. 204, provided that the act take effect June 8, 2006.

   HIERARCHY NOTES:

   Ch. 20 Note

   Ch. 20, Art. 3A Note

 


More beer less problems!

I can see teetotalers hiding under the bed and certain religious sects nailing me to the cross, but think about the article!

Several years agoWest Virginia University quit selling beer in its football stadium. However, they allowed fans to tailgate at the stadium and leave the stadium during halftime. Consequently, fans would get loaded before the game to have their buzz last till halftime where they would leave the stadium to get buzzed again for the last half of the game. On top of that, sneaking alcohol into the stadium was a bigger game than what was being played on the field. What did the policy create? Problems and challenges.

Oliver Luck is athletic director. At football games at WVU, he started to notice a few familiar sights — the unbelievable, sheer athleticism, the marching bands… and the freshmen barfing all over the stadium.

“People drinking far too much at pre-game parties and tailgate parties before games. Sneaking alcohol into games. Leaving at halftime to drink even more and come back into the game,” said Luck.

WVU like most colleges prohibited alcohol and the sale of alcohol in its stadium. WVU realized that abstinence does not work!

So WVU started selling beer in the stadium. Contrary to popular belief, chaos did not run amuck at WVU football games.

“In 2010, we made 117 arrests on game days. In this past year, we only made 79. See, that’s almost a 35 percent reduction in arrests we made,” said Bob Roberts, West Virginia University police chief.

West Virginia made about $500,000 the sale of beer the first year. More money and less problems. (Sounds like a beer ad.) Believe me, no matter what the fines of the 35% of lost arrests, it would never make up the half million the university made.

You cannot stop people from doing what they want to do. We have millions incarcerated in prisons to prove that point. What we can do is make money on it and help those who want to do it to understand it and maybe exercise a little control over it.

More importantly instead of telling people how to live, let’s work with people to figure out the best way to solve everyone’s problems. As Stephen R. Covey said in “The Seven Habits of Highly Effective People,” make it a “Win Win.”

See Can selling beer help college fans drink less?

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States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.

Montana

MCA § 27-1-702

   All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

Virginia

Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)

Use of a Release is Restricted

Arizona

Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53

New Mexico

Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48

P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25

West Virginia

Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;

1994 W. Va. LEXIS 161

Use of Releases is Probably Void

Connecticut

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006

Conn. LEXIS 330

Wisconsin

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Vermont

Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

Hawaii

King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)

Found that Hawaii statute § 663-1.54.  Recreational activity liability prevented the use of a release

New York

General Obligation Law §  5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

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