Canadian suit would hold you liable for your ski buddy’s death. Ski buddy meaning the guy you don’t know skiing next to you.

Suit is absurd and if successful would create liability every time someone was hurt skiing. Riding the chairlift with someone might get you sued. And this is not alleged, a court is hearing this now in trial!

Sometimes you read about litigation that just knocks your socks off. This case is one of those.  A widow, with $18 million after her husband’s death (so you know she needs the money) is suing a man assigned as a “ski buddy” at a heli-ski operation in Canada.  The suit alleges the defendant was assigned to:

…was therefore obligated to stay close to him, keep him in sight, and assist or alert guides and other skiers if he observed his buddy in need of assistance.

The documents allege Coe failed to perform his duties as a “ski buddy” and therefore delayed the search and possibly a chance to rescue and revive Mark Kennedy.

The “ski buddy” was assigned by a guide for the heli-ski operation Mike Wiegele Helicopter Skiing. The deceased and the plaintiff did not know each other; it was something done by the guide.

Coe [defendant] says he was paired with Kennedy without any consultation, and that he alerted guides as soon as he noticed Kennedy was no longer with the group, shortly after Coe and the other skiers arrived at the bottom of the run.

So you are riding the lift, and someone leans over and says “let’s ski this run together,” are you their ski buddy now? What if a ski school instructor asks you to ride up with a minor in a ski school class to assist them on and off the lift? Are you liable if the minor falls getting off the lift? Is the minor liable if they cause you to fall getting off the lift?

Seriously, this is absurd and if allowed to continue will create untold amounts of liability in the ski industry and about any industry. Think about belayers when rock climbing.

Do Something or maybe be prepared to say “No.”

So you are heli-skiing or cat skiing, and the guide says OK, you two buddy up, what do you do? If this plaintiff is successful, you say no. You can either run the risk of skiing alone and dying or skiing with someone and getting sued if they die.

More importantly why ski with a guide service if their paperwork does not protect you. It would have cost Mike Wiegele Helicopter Skiing 3-5 more words on the release signed by the deceased to protect the defendant.

When you go undertake an activity where you sign a release, read it to make sure you are protected also. Normally, there is a higher standard of care between co-participants in a sport. (See Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case) However, even in the US some states have allowed that to slip in skiing collision cases.

It seriously only takes a few additional words in a release to stop this litigation. If you are a guide or outfitting service make sure you are protecting your clients. You do not need to reputation of staying out of court and keeping your clients in court.

If you are in a position where an outfitter or guide can create liability for you, be prepared to make this stark and horrifying decision.

This case is in Canada. Once known for not allowing this type of crap. Let’s hope this stays up north.

See ‘Ski buddy’ sued in heli-ski death

You can read the pleadings (Complaint and Answer) here.

What do you think? Leave a comment.

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Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case

Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

This decision examines the different legal decisions involving lawsuits between participants in Indiana and other states.

The plaintiff and the defendant were racing in a triathlon. Both agreed to abide by the rules of USA Triathlon, and both signed releases. While in the bicycle portion

English: Transition area (bicycles) of Hamburg...

of the race, the defendant cut in front of the plaintiff causing a collision. The defendant was disqualified for violating the USA Triathlon rule concerning endangerment.

No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified.

The referee stated the defendant’s conduct was not intentional, “rather, he was disqualified for violating the rule “because, by moving over, an accident occurred.” As you can seem the rule, and its interpretation are subject wide interpretation and would lead to more arguments (lawsuits) after that.

The plaintiff sued the defendant for negligence and for acting intentionally, recklessly and willfully causing her injuries. The defendant filed a motion for summary judgment on both claims. The trial court granted the motion on the negligence claim and denied the motion on the second claim, the international acts.

In some jurisdictions, you can appeal motions for summary judgment that do not finish the case in its entirety. Here the plaintiff appealed the decision. Whether or not you can appeal the decision is dependent on the state rules of civil and appellate procedure.

Summary of the case

The Indian appellate court did a thorough analysis of the legal issues after determining this was an issue of first impression in Indiana. An issue of first impression is one where the court has not ruled on this particular legal issue before.

The issue was what was the standard of care owed by co-participants in a sporting event. The standard for a school sporting event was negligence. The court stated that the standard was negligence, low, because of the duty the school personnel had to exercise reasonable care over the students.

The court then looked at other decisions for the duty between co-participants. The court found three states, Arizona, Nevada and Wisconsin where the duty was negligence. The court found California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas had adopted a “reckless or intentional conduct” or a “willful and wanton or intentional misconduct” standard of care. This is a much higher standard of care than the negligence standard.

English: Triathlon photographs from the Chinoo...

The court found the higher standard of care was established because participants assume the risk of the activity, to stop mass litigation that would arise every time a foul occurs, and not to limit the sport because of the fear of liability.

The Indiana court determined that participants in sports activities:

…assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.

The court granted the summary judgment as to the first count, the negligence claim and sent the second claim back to the lower court to determine if the plaintiff could prove that the action of the defendant was intentional, reckless and willful when he rode his bike. The court sent it back with this statement.

…the trial court must determine whether Kyle’s [defendant] action was an inherent or reasonably foreseeable part of the sport, such that Rebecca [plaintiff] assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to cut in front of co-participants in an effort to advance position. Thus, if Rebecca is unable to develop the facts beyond those presented at this juncture, we would conclude that Kyle’s action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.

That is a very specific statement as to how the lower court must examine the facts in the case.

The appellate court also made another statement that is very important in this day and age.

As is generally the case, the release form that Rebecca signed does not relieve Kyle from liability as co-participants are not listed among the specific entities or individuals released from liability ac-cording to the plain language of the document.

The court looked at the release to determine if the release stopped the suit even though that was not argued by the parties.

So Now What?

A triathlon bicycle with triathlon handlebar a...

It’s OK to play touch football, softball and have fun in Indiana.

At the same time, the court pointed out the fact that if the release had included the term co-participants in the release, the lawsuit might have started because the defendant would have been protected.

Here just one additional word in the release might have stopped a lawsuit.

What do you think? Leave a comment.

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