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It is hard to understand the law because there are so many variations of the law and fifty different states with laws. It is harder to understand the law when the person explaining it to you is not a lawyer or worse, wrong.

It is hard to understand the law because there are so many variations of the law and fifty different states with laws. It is harder to understand the law when the person explaining it to you is not a lawyer or worse, wrong.

You don’t go to law school for fun. Law school is NOT fun. You go to law school to understand how the law works. Law School is just the first step. You must study and understand what is going on to understand an area of the law.

If you did not go to law school, and you need legal help, ask a lawyer.

I got a question the other day from a client. He was preparing to give a speech to a group of lodge owners and wanted to make sure he was going to say the right thing about the Good Samaritan Act. He had read a lot of websites and particularly one website and thought he understood the issues.

He did not. Neither did the websites. In fact, one of the websites, which was based on the course and book he had just taken described what the Good Samaritan law was based for that course. The course, book and class were wrong too.

My client was off, and the website was wrong. The problem is the wrong was enough to get you in trouble as a professional, program college or business.

You really need to beware of non-lawyers telling you what the law says.

First, there is not one Good Samaritan Law, there are at least fifty, in reality, there are more than 150. Each state has its own Good Samaritan law. Many states have many different laws covering rescue, first aid, AED use, the Heimlich maneuver and other aspects of providing support to injured people without becoming liable.

Everyone explains the Good Samaritan law as you are not liable if you help someone in need and are not paid for that help. Sort of.

All the following are requirements from different state Good Samaritan laws. You are covered…

  • If you have the right training
    • Some states list the training you must have
    • You follow the standards of a specific training organization (dependent upon the state).
      • American Red Cross
      • American Heart Association
      • National Safety Council
      • National Ski Patrol
      • Boy Scouts of America
      • A course as determined by the Secretary of Health and Mental Hygiene
      • Department of Public Health
      • director of health
      • mining enforcement and safety administration of the bureau of mines of the department of interior
      • Kentucky Cabinet for Health and Family Services
  • If you don’t act outside the scope of your training
  • You act like a reasonable or ordinary prudent person
  • If you are not being paid for your services
  • You are not in a hospital or in some states on hospital grounds
  • You are a member of an organization that exists to provide emergency services
  • You act in good faith
  • You have been called to act by the county sheriff
  • You are paid but not to provide first aid, only to provide public services
  • You did not act willfully, wantonly or recklessly or by gross negligence
  • The care is provided at the scene of the accident
  • You are at work
  • You are not at work
  • You’ve been trained in the use of the AED
  • You’ve been trained in the use of the epinephrine
  • You are not the one that caused the injury or placed the person in peril
  • Or you have not obtained consent

You are NOT covered by Good Samaritan Laws in some states if….

  • “…or when incidental to a business relationship existing between the employer or principal of the person rendering such care…”
  • Shall not apply if the care inures to your employer
  • Where the person has not consented to the care
  • Are working as a guide or outfitter
    • Whether or Not you are being paid as a guide
      • If you are required to have 1st aid you are not covered
    • Whether or Not being paid as a physician
      • But some states allow you to be paid later as a physician
  • You placed the person in peril
    • Meaning any part of the trip as a guide

Just look at the requirement that the care be rendered at the scene of the accident. You are helping someone get out of the backcountry, and you adjust their band aid, away from the accident scene. In man states you are not covered by the state Good Samaritan act.

As a Guide are you covered by the Good Samaritan Act? NO!

My client’s confusion was the fine line between compensation for your services, and compensation as a guide or employee, because you are paid to provide first aid. Meaning as a guide, who may or may not be required to provide first aid or have first aid training, are you covered under the Good Samaritan law, if you provide first aid training to one of your guests. In most cases no.

There is no Good Samaritan coverage if:

    You are employed and part of your job is to provide first aid

        Because you are required to have a level of first aid training

        The industry requires people to be trained in first aid

    The guest knows you are trained in first aid and relies on that knowledge you gave them

    The landowner or river owner requires it under a permit or concession

    You placed the guest in the peril that caused the injury.

        You picked the location where the guide is fishing

        You picked the route up the mountain

    You told the guest to follow the map you gave them on the ride or hike

You are a guide, and you took the client out; you are not covered by the Good Samaritan laws in most states.

You are a guide, the definition meaning you will take care of the client.

And the issues above are not changed in the Outdoor Recreation Industry by using Independent Contractors. In all cases, the guide and the outfitter are liable.

Consequently, a website, class or book cannot in one paragraph tell you whether your actions are going to be covered by the Good Samaritan law.

I hope you are covered by the Good Samaritan law, but find out for sure.

Do Something

It sucks but getting legal advice from someone other than attorney does not work.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn





If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

The defendant one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also, laid out the risks of skiing quite broadly in its information to the plaintiff.

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania

Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill

Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.

Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area

Defendant Defenses: Assumption of the Risk and Release

Holding:

Year: 2006

Summary

Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.

Facts

The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)

While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.

The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.

Analysis: making sense of the law based on these facts.

The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”

Under Pennsylvania law, a release to be valid must:

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

The court then went through the facts in this case to see if the requirements under the law were met.

The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”

The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”

The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.

The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.

The court found that icy conditions were an inherent risk of skiing in Pennsylvania.

Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.

So Now What?

It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.

Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.

In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


The statute is unclear as to the requirements that a ski area must enforce, so the patrons are at risk of an injury. Who is liable and what can a ski area do?

C.R.S. §§ 33-44-109. Duties of skiers – penalties. States in section 6:

(6) Each ski or snowboard used by a skier while skiing shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard become unattached from the skier. This requirement shall not apply to cross country skis.

The Colorado Skier Safety Act above section C.R.S. §§ 33-44-109. Duties of skiers – penalties stated above requires skiers and snowboarders to have a retention device before skiing at a ski area.

Four of the 11 duties in section C.R.S. §§ 33-44-109 have criminal penalties if you violate those statutes.

(12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.

C.R.S. §§ 33-44-109. Duties of skiers – penalties.

(3) No skier shall ski on a ski slope or trail that has been posted as “Closed” pursuant to section 33-44-107 (2) (e) and (4).

(9) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug or while such person is under the influence of alcohol or any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug.

(10) No skier involved in a collision with another skier or person in which an injury results shall leave the vicinity of the collision before giving his or her name and current address to an employee 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 event the person so leaving the scene of the collision shall give his or her name and current address as required by this subsection (10) after securing such aid.

(11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6).

The criminal charges are petty offenses. However, riding a lift or skiing/boarding without a retention device does not have a criminal penalty.

The section (6), has no penalty if you fail to have a leash or brake on your board or skis.

On a side note, tickets written for violation of the law are written by law enforcement. Ski Patrollers or other ski area employees cannot write you a ticket for violating the law. They can, however, take your lift ticket or season pass.

The issue of riding without a brake or retention device is even further complicated by the manufacturers of ski and snowboard equipment. Skies come with brakes as part of the binding. Tele or backcountry equipment come with leashes. Snowboards or snowboard bindings do not come with leashes.

If you purchase a product should the product come with the required statutory safety requirements?

Snowboards fly down the mountain all the time because they get away from the snowboarders. They sit down, take off the board to work on it or rest and lean the board on one edge with the bindings down. Any hit to the board and the board is on the snow going downhill.

I once dealt with a twelve-year-old girl who walking in her ski boots and had a runaway snowboard hit her in the ski boot breaking her ankle.

The question then becomes, “If a snowboard or ski gets away from a boarder or skier and the runaway board or ski strikes someone and injures them who is liable?”

The snowboarder or skier is liable. No question there, those people with the lift ticket were required to follow the law and have a leash or retention device.

The statute requires them to have a leash or brake, and they did not. They are liable. If the boarder loses a snowboard because they did not have a leash on the snowboard, and it goes down the hill striking someone and injuring them, they are negligent per se. Negligence per se is liability for violation of a statute.

The border or skier is also liable because another section of the Colorado Skier Safety Act states that.

33-44-104. Negligence – civil actions.

(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.

Most people read this section of the statute and think this is how a ski area is held liable when they violate the statute. And it is. However, the statute is written in a way that the liability is not only that of the ski area, an individual who violates the statute can be civilly liable also.

Any violation of this article which causes an injury creates liability on the part of the person who violated the statute, and that is not limited to the ski area. Since no specific “person” is named, then any person who causes injury is liable.

What about the ski area?

No ski area checks to see if everyone riding the lift or skiing has a brake or a leash. If a ski area did, they would have to put in a permanent exit from the lift line so boarders could go buy leashes (or go home because they don’t have enough money for a leash).

However, the ski area is not liable if they allow someone on the ski hill without a leash or a brake. The statute is specific on when a ski area is liable and C.R.S. §§
C.R.S. §§ 33-44-109(6) is not on the list that creates liability to the resort.

But what about the manufacturers of the snowboard bindings that are sold without leashes? Is the manufacturer liable for selling a product that does not include a statutory safety item?

Probably not, because the liability is on the individual according to the statute. However, in some states, could that liability continue up the chain and hold the snowboard manufacturer or binding manufacturer liable.

Other state ski area statutes

Seventeen states have ski area safety statutes. (See State Ski Safe Acts.) Of those seventeen states eight have some requirement for “retention devices.” All eight require skiers (and boarders) to wear retention devices. Three of the statutes place a duty on the ski area to post notices about wearing the retention devices, CN, ID and ND. Not statute creates liability for the ski area for allowing people to ski or ride without brakes or leashes.

[Emphasize added]

Connecticut

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:

(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;

Sec. 29-213. (Formerly Sec. 19-418m). Prohibited conduct by skiers.

No skier shall:

(7) fail to wear retention straps or other devices used to prevent runaway skis;

Idaho

§ 6-1103. Duties of ski area operators with respect to ski areas

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

(7) To post notice of the requirements of this chapter 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;

§ 6-1106. Duties of skiers

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

North Carolina

§ 99C-2. Duties of ski area operators and skiers

(5) To wear retention straps, ski brakes, or other devices to prevent runaway skis or snowboards;

North Dakota

53-09-03. DUTIES OF SKI OPERATORS WITH RESPECT TO SKI AREAS.

7. To post notice, at or near the boarding area for each aerial passenger tramway designed to transport passengers with skis attached to boots, of the requirements of this chapter concerning the use of ski retention devices. This obligation is the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices.

53-09-05. DUTIES OF PASSENGERS.

Every passenger shall have the duty not to:

8. Wear skis without properly securing ski retention straps.

New York

§ 18-105. DUTIES OF SKIERS

All skiers shall have the following duties:

12. To wear retention straps or other devices to prevent runaway skis;

Oregon

30.985. Duties of skiers; effect of failure to comply.

(h)Skiers must wear retention straps or other devices to prevent runaway skis.

Virginia

§ 8.01-227.17. Duties and responsibilities of winter sports participants and certain other individuals

g. Wearing retention straps, ski brakes, or other devices to prevent runaway equipment;

So, What Now?

If you lose a ski or board and that board hit someone or something and cause’s injury, you will be liable in eight states and probably liable in all states.

Possibly in some states, the manufacturer of the bindings who does not provide brakes or leashes (retention devices) could be liable.

Ski areas are not liable for failing to check for retention devices, and they are not liable if a ski or snowboard gets away from someone and injuries another guest.

Ski areas can stop you from skiing, riding or boarding a lift without brakes or leashes, but few if any do.

That leaves several unanswered questions.

What should the resorts do? Should they enforce the rule to require everyone to have a retention device?

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,



Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.

The terrain off of the trail was different than normally found at a ski area. A 3-4 drop off into a pile of rocks. However, the risk is skiing off the trail, not what you run into when you do.

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Quan Vu and May Siew

Defendant: Ski Liberty Operating Corp., et. al.

Plaintiff Claims: Negligence and Loss of Consortium

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The definition of an inherent risk when skiing is not what causes the injury, only the risk that led to the injury. Under Pennsylvania law, there is a broad definition of inherent risks and this case was dismissed because the plaintiff assumed those inherent risks, and the defendant did not owe a duty to protect him from those risks.

Facts

The plaintiff was an experienced skier, who had been skiing for twenty years. He was skiing behind his daughter at the defendant’s ski area. A snowboarder came close to the plaintiff or hit the plaintiff sending or causing him to ski off the trail. He went off the trail, over a 3-4 drop and landed in a pile of rocks.

…Mr. Vu does not recall much detail about his accident. Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. The last thing that Mr. Vu remembered was skiing with his daughter.

He sued the defendant ski area because it was:

…negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition.

The court granted the defendants motion for summary judgment.

Analysis: making sense of the law based on these facts.

The decision was based on the Pennsylvania Skier’s Responsibility Act. The court had to decide if the risks encountered by the plaintiff were inherent risks of skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing. As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”

If there is no duty, then there can be no negligence.

Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.

Pennsylvania has a two-part test to determine if the defendant owed the plaintiff a duty.

First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of down-hill skiing.” If so, then summary judgment must be awarded against the plaintiff as a matter of law.

The first test was met; the plaintiff was skiing at the time of his accident.

The court then had to determine if the risks the plaintiff encountered were inherent to skiing. Under Pennsylvania law, inherent risks “are those that are “common, frequent, and expected” in downhill skiing.”

The plaintiff argued that because the plaintiff was no specifically aware of the risk of the 3-4-foot drop off and the pile of rocks, he could not assume the risk.

Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply.

In many cases, assumption of the risk would not be a defense if the injured plaintiff had no specific knowledge of the risk. However, it was not the case here under the statute. It did not matter if the Plaintiff had specific knowledge of the risk or a general knowledge of the risks of skiing, he assumed those risks.

The court then looked at the facts and found there were two circumstances that gave rise to the plaintiff’s injuries, veering to avoid a collision and skiing over the drop off.

The first is an inherent risk of skiing in Pennsylvania.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with an-other skier is one of the common, frequent and expected risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.

The next issue was whether skiing over the drop off into a pile of rocks was an inherent risk of skiing. Here again, the court found skiing off the trail, no matter what you may encounter once you are off the trail, is an inherent risk of skiing. The court backed its point up quite interestingly.

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis.

The court found the defendant did not owe the plaintiff a duty because he assumed the risks of his injury under the Pennsylvania Skier’s Responsibility Act.

So Now What?

Actually, an easy case. Easy under Pennsylvania law because of the Pennsylvania Supreme Courts interpretation of the Pennsylvania Skier’s Responsibility Act. When skiing in Pennsylvania collisions with other skiers or boarders are an inherent risk of skiing and skiing off the trail is also.

What do you think? Leave a comment.

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Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Quan Vu and May Siew, Plaintiffs, v. Ski Liberty Operating Corp., et. al., Defendants,

1:16-cv-2170

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2018 U.S. Dist. LEXIS 49013

March 26, 2018, Decided

CORE TERMS: skiing, trail, edge, downhill, ski, skier, snowboarder, sport, inherent risk, slope, collision, rocks, summary judgment, drop-off, att, daughter, skied, snow, pile, foot, lift ticket, knee-jerk, genuine, resort, Skier’s Responsibility Act, matter of law, specific risk, experienced, elevation, veering

COUNSEL: [*1] For Quan VU, May Siew, Plaintiffs: D. Aaron Rihn, Mark D. Troyan, LEAD ATTORNEYS, Robert Peirce & Associates, P.C., Pittsburgh, PA USA.

For Ski Liberty Operating Corp. doing business as Liberty Mountain Resort, Defendant: Anthony W. Hinkle, Snow Time, Inc., Cipriani & Werner, P.C., Philadelphia, PA, USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Plaintiffs: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Defendants: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

JUDGES: Hon. John E. Jones III, United States District Judge.

OPINION BY: John E. Jones III

OPINION

MEMORANDUM

Plaintiffs are Quan Vu and his wife, May Siew. (“Plaintiffs”). Defendants are Ski Liberty Operating Corp. and Snow Time, Inc., operating as Liberty Mountain Resort. (“Defendants”). This action arises out of a skiing accident at Liberty Mountain that left Mr. Vu severely injured. The complaint brings one count of negligence on behalf of Mr. Vu and one count of loss of consortium on behalf of Mrs. Siew, both alleging that the accident was caused by the Defendants’ negligence in maintaining the ski slope and failing to warn Mr. Vu of [*2] the slope’s hazardous condition. (Doc. 1). Presently pending before the Court is the Defendants’ motion for summary judgment. (the “Motion”) (Doc. 36). The Motion has been fully briefed and is therefore ripe for our review. (Docs. 38, 42, 43). For the reasons that follow, the Motion shall be granted.

I. BACKGROUND

On January 23, 2015, Mr. Vu was downhill skiing with his daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu was following his daughter from behind as they skied down the Lover Heavenly trail, a blue square intermediate hill, when he had his accident. (Id. at ¶¶ 24-25). Due to his injuries, Mr. Vu does not recall much detail about his accident. (Doc. 37, ¶ 11). Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. (Id. at pp. 65-66). The last thing that Mr. Vu remembered [*3] was skiing with his daughter. (Id. at p. 66).

Mr. Vu’s daughter testified: “I saw someone get really close to him and he was trying to avoid them and it was either ramming into him, the snowboarder, or person who was trying to get really close to him, or veering off path.” (Doc. 42, att. 2, p. 8). “He — there was someone trying to kind of get really close to him. And he didn’t want to ram into him. So he — I don’t really understand — know what happened. But he tried to avoid it. And there was like a big ditch or something there. And he tried to stop and tried to avoid the person who was trying to cut him off.” (Id.). “My dad was — the snowboarder was — my dad was kind of like the ham in the middle of a sandwich. Between the end of the trail, the edge of the trail and the snowboarder.” (Id. at p. 9). “I just felt that the snowboarder was getting quite close to my dad and I didn’t want a collision to happen or the snowboarder to ram into my dad.” (Id. at p. 10).

Ultimately, whether he did so intentionally or not, Mr. Vu skied off of the edge of the trail and suffered catastrophic injuries. There was a drop-off at the edge of the ski trail of about three to four feet. (Doc. 41, ¶ 32). Below that drop-off was a large pile [*4] of rocks. (Id. at ¶ 31). Mr. Vu skied off of the edge of the trail, off of the embankment, and landed on the pile of rocks. (Doc. 37, ¶ 11).

Mr. Vu was an experienced skier at the time of his accident. He had skied for over twenty years and was capable of skiing black diamond slopes. (Id. at P 6). Mr. Vu testified that he was familiar with the Skier’s Responsibility Code and understood that he was responsible for skiing in control and in such a manner that he could stop or avoid other skiers. (Id.). Mr. Vu also testified that he understood that skiing is a dangerous sport and that he could get hurt if he skied out of control or if he fell. (Id.).

On the day of his accident, Mr. Vu’s wife purchased his Liberty Mountain Resort Lift Ticket. (Id. at ¶ 18). The back of the lift ticket reads as follows:

PLEASE READ

Acceptance of this ticket constitutes a contract. The conditions of the contract are stated on this ticket & will prevent or restrict your ability to sue Liberty Mountain Resort. If you do not agree with these conditions, then do not use the facility. Snowsports in their various forms, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are [*5] not limited to: variations in snow, steepness & terrain, ice & icy conditions, moguls, rocks, trees & other forms of forest growth or debris (above or below the surface), bare spots, lift towers, utility lines & poles, fencing or lack of fencing, snowmaking & snowgrooming equipment & component parts, on-snow vehicles & other forms of natural or man-made obstacles, and terrain features on or off designated trails as well as collisions with equipment, obstacles or other snowsport participants. Trail conditions vary constantly because of weather changes and use. All the inherent and other risks involved present the risk of permanent catastrophic injury or death. In consideration of using Liberty’s facilities, the purchaser or user of this ticket agrees to accept the risks of snowsports and understands and agrees that they are hazardous and further agrees NOT TO SUE Ski Liberty Operating Corp., its owners or employees if injured while using the facilities regardless of any negligence, including gross negligence, on the part of the resort, and/or its employees or agents. The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in the sport, and agrees [*6] to report all injuries before leaving the resort . . .

(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was uncertain if he read the language on the lift ticket on the day of his accident, he testified that he had read it at some point prior to his accident. (Doc. 37, ¶ 20). At his deposition, Mr. Vu was asked to read portions of the lift ticket and he had trouble doing so because the font was too small. (Doc. 37, att. 1, p. 70).

Mr. Vu and his wife initiated this action with the filing of a complaint on October 27, 2016. (Doc. 1). Plaintiffs allege that Defendants were negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition. Defendants filed the instant motion for summary judgment on January 31, 2018. (Doc. 36).

I II. LEGAL STANDARD

Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute [*7] is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P. 56(c)(1).

A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the [*8] mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).

III. DISCUSSION

Defendants move for summary judgment on two legal bases. First, Defendants argue that Plaintiffs’ claims are barred as a matter of law because Mr. Vu’s injuries were caused by an inherent risk of skiing. Second, Defendants argue that Plaintiffs’ claims are barred by the exculpatory release language contained on the Liberty Mountain lift ticket. Because we find that Mr. Vu’s injuries arose out of risks inherent to the sport of downhill skiing, we hold that Defendants are entitled to summary judgment as a matter of law without even considering the exculpatory release language of the lift ticket.

The material facts surrounding Mr. Vu’s accident are not in dispute. Though Mr. Vu and his daughter are unclear on the specifics, it is undisputed that Mr. Vu ended up skiing off of the trail, over a drop-off, and into a pile of rocks. (Doc. 37, ¶ 11). Mr. Vu testified that a snowboarder was getting too close to him and his “knee-jerk” reaction was to veer to avoid a collision, causing him [*9] to ski off of the trail and over the embankment. (Doc. 37, att. 1, pp. 65-66). Mr. Vu’s daughter also testified that her father’s accident occurred when he tried to avoid a collision with a snowboarder. (Doc. 42, att. 2, p. 8). While Defendants argumentatively refer to this person as the “phantom snowboarder” and question the credibility of the testimony, for purposes of this Motion we can take Plaintiffs’ facts as true and assume that Mr. Vu skied off of the trail, either intentionally or as a result of a knee-jerk reaction, to avoid colliding with a snowboarder. Even so, summary judgment must be granted in favor of the Defendants because Mr. Vu’s accident occurred as a result of inherent risks of downhill skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing.” 42 Pa. C.S. § 7102(c). As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a [*10] place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.

In Hughes v. Seven Springs Farm, Inc., the Supreme Court of Pennsylvania established a two-part test for courts to use to determine whether a plaintiff’s claims are barred by the no duty rule of the Skier’s Responsibility Act. 762 A.2d 339, 343 (2000). “First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” Id. at 344. “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of downhill skiing.” Id. If so, then summary judgment must be awarded against the plaintiff as a matter of law. Id. In the case at-bar, there can be no dispute that Mr. Vu was engaged in the sport of downhill skiing at the time of his accident. The salient question, therefore, becomes whether veering off-trail and over a drop-off into a pile [*11] of rocks to avoid a collision with a snowboarder are inherent risks of downhill skiing. If those risks are inherent to skiing, then Defendants had no duty to protect Mr. Vu. Chepkevich, 2 A.3d at 1186. If those risks are not inherent, traditional principles of negligence apply and we must determine what duty the Defendants owed Mr. Vu, whether the Defendants breached that duty, and whether the breach caused Mr. Vu’s injuries.

We begin with a discussion of what it means for a risk to be “inherent.” The Hughes court explained that “inherent” risks are those that are “common, frequent, and expected” in downhill skiing. Id. In interpreting risks, the Supreme Court of Pennsylvania has instructed that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Chepkevich, 2 A.3d at 1187-88. “Accordingly, courts have rejected attempts by plaintiffs to define the injury producing risks in very a specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017) (Mariani, J.). For example, the Supreme Court of Pennsylvania in Chepkevich rejected the plaintiff’s argument that she did not assume the “specific [*12] risk” involved, looking instead to the “general risk” that gave rise to the accident. 2 A.3d at 1188. A number of courts have addressed the scope of the Skier’s Responsibility Act and have concluded that some of the inherent risks of downhill skiing include: lack of netting, improper course plotting, or soft snow1; skiing off trail and striking a tree2; collisions with unpadded snow equipment poles3; striking a fence on the edge of the trail4; and collisions with other skiers or snowboarders.5

1 Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir. 2008).

2 Id.

3 Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983).

4 Cole, 2017 WL 4621786, at *5.

5 Hughes, 762 A.2d 339.

Before addressing the risks that Mr. Vu encountered, we must address Plaintiffs’ initial argument that the assumption of the risk doctrine is inapplicable. Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8) (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply. (Id. at pp. 9-13). For support of this argument, Plaintiffs cite several cases that are materially distinct from the case at-bar. First, Plaintiffs [*13] quote Barillari v. Ski Shawnee, Inc., “[i]t is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks.” 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013). Importantly, the court made this statement when analyzing the doctrine of voluntary assumption of the risk after determining that the Skier’s Responsibility Act was not applicable because the plaintiff was not engaged in the sport of downhill skiing at the time of the accident. Id. at 561. The instruction of this quote is inapplicable to our consideration of the no duty doctrine of assumption of the risk.

Next, Plaintiffs rely heavily on Bolyard v. Wallenpaupack Lake Estates, Inc., 2012 WL 629391(M.D. Pa. Feb. 27, 2012) (Caputo, J.). In Bolyard, the plaintiff sued the defendant for negligence after sustaining injuries while snow tubing on the defendant’s property. Id. at *1. The court recognized that while the plaintiff had “general knowledge” of the dangers of snow tubing on the hill, she did not assume the risk because “there is no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Id. at *6. Plaintiffs argue that “[s]imilar to the patron in Bolyard,” Mr. Vu was only generally aware of the risks he could suffer while skiing and thus assumption of the risk is inapplicable. (Doc. [*14] 42, p. 8). We disagree.

Notably, the slope in Bolyard was an old slope that was not currently in operation. 2012 WL 629391, at *1. The court used principles of negligence as applicable to landowners and licensees to determine the duty owed to the plaintiff and, consequently, considered the doctrine of voluntary assumption of the risk as a defense. Id. at **3-6. Analyzing the present action under the no duty rule, we do not consider the defense of voluntary assumption of the risk; instead, we must determine whether Mr. Vu’s injuries arose out of an inherent risk of the sport of skiing such that the Defendants had no duty at all. Pursuant to Hughes and the Skier’s Responsibility Act, there is no duty to protect a skier from the inherent risks of skiing and therefore, “when inherent risks are involved, negligence principles are irrelevant.” Id.

Finally, Plaintiffs cite Perez v. Great Wolf Lodge of the Poconos LLC,6
Staub v. Toy Factory, Inc.,
7
Jones v. Three Rivers Mgmt. Corp,
8 and Telega v. Sec. Bureau, Inc.9 in support of their position that assumption of the risk does not apply because Mr. Vu did not appreciate the specific risks that caused his accident. To start, none of these cases address the Skier’s Responsibility [*15] Act. These cases discuss appreciation of specific risk only after determining that the no duty rule was inapplicable because the risk encountered was not inherent. Again, we reiterate that “[n]egligence principles are irrelevant where the ‘no duty’ rule applies.” Lin v. Spring Mountain Adventures, Inc., 2010 WL 5257648, at *7 (E.D. Pa. Dec. 23, 2010). Whether the no duty rule applies turns on whether Mr. Vu’s particular injuries arose out of risks inherent in the sport of skiing — an issue that is not dependent on a plaintiff’s subjective awareness of those specific risks.

6 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (Mariani, J.).

7 749 A.2d 522, (Pa. Super. 2000).

8 483 Pa. 75, 85, 394 A.2d 546, 551 (1978).

9 719 A.2d 372, 376 (Pa. Super. Ct. 1998).

We now turn to the risks involved in Mr. Vu’s accident. The facts reveal two circumstances that gave rise to Mr. Vu’s injuries: (1) veering to avoid a collision with a snowboarder; and (2) skiing over the drop-off at the edge of the trail and into a pile of rocks. If these risks are inherent to the sport of downhill skiing, Plaintiffs’ claims cannot stand.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with another skier is one of the common, frequent and expected [*16] risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Hughes, 762 A.2d at 344. Likely in recognition of the clear case law, Plaintiffs do not argue in their brief in opposition to the Motion that avoiding a collision with a snowboarder is a risk that would give rise to a duty on behalf of Defendants. To the extent that Plaintiffs’ claims of negligence are premised on Mr. Vu’s avoidance of a collision with the snowboarder, those claims must fail.

Next, we consider whether skiing over the edge of the trail and encountering a three to four foot drop-off into a pile of rocks is an inherent risk of downhill skiing. Plaintiffs frame this risk as the primary cause of Mr. Vu’s injuries.10 “Simply put, the risk of ejectment from a ski trail due to a 3 to 4 foot drop off and striking one’s head on rocks and/or boulders . . . is not an inherent, frequent, common, and expected risk of skiing.” (Doc. 42, p. 11). All parties recognize that the drop-off was at the edge of the trail rather than a ditch or hole in the slope itself. Though Plaintiffs stress that Mr. Vu did not “willingly [*17] decide to ski off trail,” the distinction is of no consequence. Plaintiffs describe the incident in terms of Mr. Vu being “ejected” from the trail due to the embankment, but it is illogical to argue that the existence of the drop-off itself would cause a skier to go over it. Whether Mr. Vu did so intentionally, accidentally, or as a means of avoiding a collision, the incontrovertible fact is that Mr. Vu did, ultimately, ski off of the three to four foot edge of the trail.

10 “. . . the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8); “Even if Defendant could establish that having a 3 to 4 foot trail edge drop presents a danger inherent to the sport of skiing . . .” (Id. at p. 9); “. . . he was ejected from the trail when attempting to avoid a collision and was confronted with a 3 to 4 foot drop in elevation from the ski trail.” (Id. at p. 11).

We hold that the risk of skiing off trail and suffering from the change of elevation between the trail and surrounding terrain is an inherent risk of downhill skiing. Mr. Vu was an experienced skier who was well aware of the risks of skiing off the designated slope; he testified repeatedly that he “would never ski off-trail.” (Doc. 41, att. 1, p. 43). He had previously skied at Liberty Mountain on multiple occasions and could not remember ever complaining about the trail or trail markings. (Id. at pp. 35-36). Additionally, Mr. Vu’s daughter testified that she did not have any difficulty discerning the edge of the slope where her father went off trail the evening of the accident. (Doc. 41, att. 2, p. 14). It would be irrational for [*18] any court to hold that skiing off trail and encountering dangerous terrain is not an inherent risk of the sport of downhill skiing — ski slopes are marked and maintained in appreciation of this risk, and beginner and experienced skiers alike know to stay within the trail limits to avoid injury. Mr. Vu himself testified that he understood that he could run into trees, rocks, boulders, or snowmaking equipment if he skied off trail. (Doc. 37, att. 1, p. 71).

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis. One case from the New York appellate court, however, was particularly analogous. In Atwell v. State, the plaintiff was skiing near the edge of the trail when he observed a “floundering” skier in his path. 645 N.Y.S.2d 658, 659 (1996). Plaintiff “instinctively reacted and turned without thinking” to avoid a collision and ended up skiing off trail and into a tree. Id. The court easily found that plaintiff’s injuries were due to inherent risks of skiing. Id. at 650. “[F]rom claimant’s own description of the accident, there can be no dispute that everything he encountered, including the skier he turned [*19] to avoid hitting, the berm at the edge of the trail referred to by claimant’s expert and the tree with which he collided, are all statutorily recognized as inherent dangers of skiing.” The court noted that “[c]laimant chose to ski near the edge of the trail and there is nothing in the record to indicate that the location of the edge of the trail was not readily observable to him.” Id. Similarly here, Mr. Vu was an experienced skier who chose to ski near the edge of the slope. He had a knee-jerk reaction to avoid a skier, and ended up veering off of the trail and suffering from the elevation change and his collision with rocks. Not only is there a lack of any evidence that the edge of the trail was difficult to discern, but Mr. Vu’s daughter testified at length about how her father was close to the edge of the trail and specifically stated that she could observe the edge of the slope without difficulty. (Doc. 41, att. 2, p. 14).

We agree with the Supreme Court of New Hampshire, which simply held: “Even the most generous reading of the plaintiff’s pleadings reveals the chief cause of his injuries to be an unenumerated, yet quintessential risk of skiing: that a skier might lose control [*20] and ski off the trail. By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.” Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 684, 671 A.2d 548, 553 (1996).

IV. CONCLUSION

For the foregoing reasons, the Motion shall be granted. A separate order shall issue in accordance with this memorandum.

ORDER

Presently before the Court is Defendants’ motion for summary judgment. (Doc. 36). In conformity with the Memorandum issued on today’s date, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion for summary judgment (Doc. 36) is GRANTED.

2. The Clerk of the Court SHALL CLOSE the file on this case.

/s/ John E. Jones III

John E. Jones III

United States District Judge


NASTAR release was held by the Michigan Appellate court to be written narrowly and only protect the ski area when the guest was racing or training.

Michigan Ski Safety Act did not apply because it was too early in the proceedings to determine if a rope hanging below the chairlift was an inherent risk of skiing under the act.

Ritari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711

State: Michigan, Court of Appeals of Michigan

Plaintiff: Ronald Ritari, JR. and Tama Ritari

Defendant: Peter E. O’dovero, Inc., doing business as Marquette Mountain

Plaintiff Claims: was negligent by having ropes in the area of the chair lift, failing to post warnings of the danger, failing to take measures to prevent plaintiff from catching his skis on the rope, failing to employ the emergency stop when plaintiff yelled for help, and failing to adequately supervise and control the chair lift

Defendant Defenses: Release and Michigan Ski Area Safety Act (SASA)

Holding: For the Plaintiff

Year: 2017

Summary

Your release must be written to cover the risks and activities you need to cover. If your release fails, as in this case, then you are faced with proving the activity that injured your guest was an inherent risk of skiing.

A rope hanging below a lift, low enough a ski could be caught in the lift is going to be an interesting argument at trial to prove it is an inherent risk of skiing.

Facts

The plaintiff was a season pass holder at the ski area and enjoyed racing NASTAR. One evening while riding the chair lift his skis were caught on a nylon rope hanging below the lift when a gust of wind pulled the chair down. The plaintiff was pulled out of the chair by the rope where he fell 12′ to the ground sustaining a fractured pelvis and fracture ribs.

The plaintiff filed suit. The Defendant ski area filed a motion for summary judgment based on the NASTAR release and the Michigan Ski Area Safety Act. The plaintiff seems to have signed two releases, one when he purchased a season pass, however, only the NASTAR release was argued at trial.

The trial court dismissed the defendant’s motion for summary judgment finding the release was ambiguous, and the rope hanging below the chairlift was not an inherent risk of skiing. The defendant appealed the trial court’s decision.

Analysis: making sense of the law based on these facts.

The court first looked at the release. The trial court had found the release was ambiguous. “A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation.”

The scope of a release is governed by the intent of the parties as it is expressed in the release. If the text in the release is unambiguous, the parties’ intentions must be ascertained from the plain, ordinary meaning of the language of the release. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity.

To determine if a contract is valid the contract “…must be read as a whole, construed so as to give effect to every word or phrase as far as practicable…” An ambiguous contract is also referred to as a contract “…reasonable susceptible to more than one interpretation.”

The appellate court found the release was not ambiguous.

We conclude that, when read as a whole and interpreted in conjunction with the NASTAR registration form on its reverse side, the language of the Participant release is unambiguous and in-tended to relieve defendant of “all liability” for injuries suffered during training for or participating in a racing competition.

The plaintiff also argued that the release only applied when the plaintiff was racing or training for NASTAR. Here the court found for the plaintiff. On this issue, the appellate court agreed with the trial court and held that the release could be interpreted to only be for racing or training for NASTAR events.

A rope hanging below the chairlift was not a listed risk in the Michigan Ski Area Safety Act. Therefore, the court needed to determine if the ski area safety act applied to this risk.

There is no dispute that the nylon rope that entangled plaintiff is a hazard not listed in MCL 408.342(2). Thus, the question is whether the placement of a nylon rope under a chair lift is inherent to skiing and, if so, whether placement of the rope in this case was obvious and necessary. For defendant to be entitled to summary disposition under MCR 2.116(C)(10), these material facts must be undisputed and defendant must be entitled to judgment as a matter of law.

The court held the jury had to determine if the risk was obvious and necessary and inherent to skiing.

The appellate court sent the case back to the trial court for additional discovery by the parties and trial.

So Now What?

Any time you have an incident on the lift outside of the loading and unloading area it is going to create a problem for the courts and a question of fact. In several states, like Colorado, the operator of a lift owes the highest degree of care to the lift riders. In Colorado, this case would be based on how much the check would be, not if there was going to be a check.

Furthermore, a rope hanging below a lift that a skier could catch a ski or board with is also suspect. Whether the riders were bouncing on the lift or a gust of wind did force the chair down, that is a risk that needed to be looked at from all angles. Skiers running into people and legs extending from the chair and people on the chair catching their fee in it is a risk of roping off an area under a lift.

What do you think? Leave a comment.

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A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

A Steamboat ski area employee parked a snowmobile at the bottom of a run. The plaintiff came down the run and hit the snowmobile injuring herself. She claimed the snowmobile was not visible from 100′ and was in violation of the Colorado Skier Safety Act. The Federal District Court for Colorado Disagreed.

Schlumbrecht-Muniz v. Steamboat Ski & Resort Corporation, 2015 U.S. Dist. LEXIS 30484

State: Colorado, United States District Court for the District of Colorado

Plaintiff: Linda Schlumbrecht-Muniz, M.D.

Defendant: Steamboat Ski & Resort Corporation, a Delaware Corporation d/b/a STEAMBOAT

Plaintiff Claims: negligence, negligence per se, and respondeat superior

Defendant Defenses: Colorado Skier Safety Act

Holding: for the Defendant

Year: 2015

The plaintiff was skiing down a run at Steamboat Ski Area. (Steamboat is owned by Intrawest Resorts, Inc.) On that day, an employee of Steamboat parked a snowmobile at the bottom of that run. The snowmobile was not visible for 100′. The plaintiff collided with the vehicle incurring injury.

The plaintiff sued claiming simple negligence, negligence per se and respondeat superior. The Negligence per se claim was based on an alleged failure of the ski area to follow the Colorado Skier Safety Act.

The ski area filed a motion for summary judgment arguing the claims of the plaintiff failed to plead the information needed to allege a violation of the Colorado Skier Safety Act.

Analysis: making sense of the law based on these facts.

The court first looked at the requirements necessary to properly plead a claim.

“…the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.”

This analysis requires the plaintiff to plead facts sufficient to prove her claims to some certainty that the court can see without a major stretch of the imagination.

The ordinary negligence claims were the first to be reviewed and dismissed. The Colorado Skier Safety Act states that the defendant ski area is “immune from any claim for damages resulting from “…the inherent dangers and risks of skiing…

Notwithstanding any judicial decision or any other law or statute, to the contrary, … no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.

Although the law allows suits against ski areas for violation of the act, those claims must be plead specifically and fit into the requirements set forth in the act. As such the court found the defendant Steamboat could be liable if:

Accordingly, Steamboat may be liable under one of two theories: a skier may recover if her injury resulted from an occurrence not considered an inherent danger or risk of skiing; or a skier may recover if the ski operator violated a provision of the Act and that violation resulted in injury.

The first claim of an injury that was not an inherent risk of skiing would hold the defendant ski area liable for a negligence claim. The second requires specific violation of the Colorado Skier Safety Act.

Steamboat argued that pursuant to the Colorado Skier Safety Act, the term inherent risks as defined in the act were to be read broadly and a parked snowmobile was an inherent risk of skiing.

The Ski Safety Act defines “inherent dangers and risks of skiing” to mean:

…those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

The court then looked at decisions interpreting the inherent risk section to determine if the act was to be construed narrowly or broadly.

In all cases, Colorado courts looked at the act as a list of the possible risks of skiing but not all the possible risks. As such, a snowmobile parked at the bottom of the slope was an inherent risk of skiing.

I am also persuaded that the presence of a parked snow mobile at the end of a ski run is an inherent risk of the sport of skiing. While Steamboat cites Fleury for that court’s description of the “common understanding of a ‘danger,'” and analogizes the presence of a snowmobile to cornices, avalanches, and rubber deceleration mats for tubing, I find that a parked snowmobile is not analogous to those examples because a snowmobile is not part of the on-course terrain of the sport.

The court also found that even if the snowmobile parked on a run was not an inherent risk, the statute required skiers to stay away from vehicles and equipment on the slopes. “Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.”

The plaintiff’s argument was the violation of the statute was failing to properly for failing to properly outfit the snowmobile.

Plaintiff clarifies in her Response that the negligence per se claim is for violation of section 33-44-108(3), which requires snowmobiles operated “on the ski slopes or trails of a ski area” to be equipped with “[o]ne lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.”

Plaintiff also argued the statute was violated because the snowmobile was not visible for 100′ as required by the statute. However, this put the plaintiff in a catch 22. If the plaintiff was not a vehicle, then it was a man-made object which was an inherent risk of skiing. If she pleads the snowmobile was a vehicle and not properly equipped, then she failed to stay away from it.

Neither approach leads Plaintiff to her desired result. Steamboat correctly asserts that if the snow-mobile is characterized as a man-made object, Plaintiff’s impact with it was an inherent danger and risk pursuant to section, and Steamboat is immune to liability for the resulting injuries. If Plaintiff intends for her Claim to proceed under the theory that Steamboat violated section 33-44-108(3) by failing to equip the snowmobile with the proper lighting, she did not plead that the parked vehicle lacked the required items, and mentions only in passing in her Response that the vehicle “did not have an illuminated head lamp or trail lamp because it was not operating.”

The final claim was based on respondeat superior.

Plaintiff has alleged that the Steamboat employee was acting within the scope of her employment when she parked the snowmobile at the base of Bashor Bowl. See id. (“Under the theory of respondeat superior, the question of whether an employee is acting within the scope of the employment is a question of fact”)

Because the respondeat claim was derivative of the prior claims, and they were dismissed, the respondeat superior claim must fail. Derivative means that the second claim is wholly based on the first claim. If the first claim fails, the second claim fails.

So Now What?

This is another decision in a long line of decisions expanding the risks a skier assumes on Colorado slopes. The inherent risks set forth in Colorado Skier Safety Act are examples of the possible risks a skier can assume, not the specific set of risks.

What do you think? Leave a comment.

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