Skiing accident suit pleads negligent first aid based on actions of the ski patrol

Release and statute protecting pre-hospital care provider’s defeats plaintiff’s claims

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

Plaintiff: John G. Fisher

Defendant: Sierra Summit, Inc. et al.,

Plaintiff Claims: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident.

Defendant Defenses: Release, Assumption of the Risk, Health and Safety Code section 1799.102 and Health and Safety Code section 1799.108

Holding: for the Defendant Ski area

The plaintiff in this case was injured when he skied into a “hole in the snow” at the ski area. He also claimed the ski patrol “contributed to his injuries by providing first aid negligently.” The plaintiff’s injuries rendered him a quadriplegic.

The defendants filed a motion for summary judgment. The lower court throughout the plaintiff’s claim based on a release he signed when he rented his skis and that the plaintiff’s negligent first aid claim was barred by the California Good Samaritan Act.

The plaintiff pleaded:

The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident.

The second claim relating to the equipment was voluntarily dismissed by the plaintiff.

The defendants argued that the release signed by the plaintiff was a voluntary assumption of the risk. They supported this assertion by a statement that the area has been previously inspected by the defendant and did not find any conditions that needed corrections in the slope.

The defendants then placed the following information in their motion concerning the negligent first aid allegations.

Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop.

The defendant’s argument was fairly simple. The plaintiff stated he was paralyzed during the crash. Therefore, the ski patrol did not create his injuries. The defendants then argued that because the ski patrol did not receive compensation from the plaintiff, they were protected by the Good Samaritan Act.  The case does not state whether the ski patrollers that responded were volunteers or paid.

The defendant also argued that the ski patrollers had all been properly trained, and the plaintiff had presented no evidence that the ski patrol acted in bad faith or grossly negligent. In general, Good Samaritan acts do not provide protection for gross negligence or bad faith.

The plaintiff appealed.

Summary of the case

The court quickly agreed that the release stopped the plaintiff’s claims about the conditions on the slope.

The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible.

The plaintiff also argued the release violated public policy because the release was not clear on what it covered. The plaintiff argued the release only covered the rental of the equipment while the court decided the release covered his accident also.

…Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.

The main issue and one of interest in this case is the court’s analysis of the negligent first aid claim.

Plaintiff argued that the release did not apply to the negligent first aid allegations. The plaintiff argued:

… because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter.

The court decided not to debate the arguments made by the parties at the trial court level that the ski patrollers were protected by the Good Samaritan law because of the compensation issue. The court decided the ski patrollers were immune under another California law Health and Safety Code §1799.108 “which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith.”

The statute states:

“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”

The court first described the burden the plaintiff had to meet to prove his case.

He only claims there is a triable issue about whether they were grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith.

The court then looked at the allegations made by the plaintiff failed to meet the burden.

Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of persuasion that Fisher cannot prove an essential element of this cause of action.

Since the plaintiff did not allege that the action of the patrollers was grossly negligent or done in bad faith, nor did he plead any allegations that could be interpreted as such, the court held the patrollers were immune from litigation under the statute.

So Now What?

One of the major issues for the ski industry that this court could find a way around, was that releases used by the rental shops only cover rental of the equipment under most state laws. It does not take much to have your attorney write your equipment rental release to also cover ski school classes, or season passes, and any other activity at the resort.

If third party ski rental shops are also selling your lift tickets as part of the lift ticket package pay to have the third party rental shops release cover your ski area also.

Physicians have argued for a decade that they should be protected by a Good Samaritan act because they were not paid by the patient, but paid by the hospital were the patient was at the time of the alleged injury. This argument has failed repeatedly for physicians. The court in skipping this argument in this case probably saved itself from the numerous court cases with this type of holding.

The court finding another statute to protect the patrollers was valuable. The statute is rare and not found in many other states. However, it could be applicable in all types of outdoor recreation businesses and programs in providing liability protection in California.

The first step in meeting the protections provided by Health and Safety Code §1799.108 would be to find the list of first aid “certificate[s] issued pursuant to this division” and making sure your guides, instructors and patrollers all have the required first aid training and certificate. I would collect the certificates each year and keep them copies in a file to make sure they were always easily found. After that the application of the law should be fairly consistent based on this case.

However, the court stated the law had been changed since the accident and used the older version of the law, as appropriate. The new law states:

1799.108.  Emergency field care treatment by certificate holder

Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.

California Health and Safety Code §1799.102 states:

§ 1799.102.  Emergency care at scene of emergency; Liability

(a) No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision applies only to the medical, law enforcement, and emergency personnel specified in this chapter.

(b)

(1) It is the intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.

(2) Except for those persons specified in subdivision (a), no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision shall not be construed to alter existing protections from liability for licensed medical or other personnel specified in subdivision (a) or any other law.

(c) Nothing in this section shall be construed to change any existing legal duties or obligations, nor does anything in this section in any way affect the provisions in Section 1714.5 of the Civil Code, as proposed to be amended by Senate Bill 39 of the 2009-10 Regular Session of the Legislature.

(d) The amendments to this section made by the act adding subdivisions (b) and (c) shall apply exclusively to any legal action filed on or after the effective date of that act.

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Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

John G. Fisher, Plaintiff and Appellant, v. Sierra Summit, Inc. et al., Defendants and Respondents.

F058735

COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT

2011 Cal. App. Unpub. LEXIS 185

January 11, 2011, Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY: [*1]

APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 08CECG00198. Donald S. Black, Judge.

CORE TERMS: ski, patrollers, summary judgment, skiing, user, hole, rented, slope, emergency, snow-sliding, negligently, ambiguous, patrol, bad faith, bleachers, triable, skied, scene, crash, skier, snow, grossly negligent, triable issue, gross negligence, public policy, groomed, manufacturers, distributors, customer, arms

COUNSEL: Lang, Richert & Patch, Robert L. Patch II, David T. Richards, and Ana de Alba for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter, and Kathleen M. Bragg for Defendants and Respondents.

JUDGES: Wiseman, Acting P.J.; Kane, J., Poochigian, J. concurred.

OPINION BY: Wiseman

OPINION

Plaintiff John G. Fisher was severely injured when he crashed while skiing at the Sierra Summit ski resort. He sued defendants Sierra Summit, Inc., and Snow Summit Ski Corporation, contending he crashed because he skied into a hole in the snow that was present because of their negligence. He also claimed that ski patrol personnel at Sierra Summit contributed to his injuries by providing first aid negligently.

The trial court granted defendants’ motion for summary judgment. The court ruled that Fisher’s claim that he was injured by a dangerous condition negligently allowed to exist on the property was barred by a release he signed when he rented his skis, a release in which he expressly assumed the risk of being injured while skiing. It ruled that his claim of negligent first [*2] aid was barred by Health and Safety Code section 1799.102, 1 a Good Samaritan statute that immunizes from tort liability those who, at the scene of an emergency, render emergency care in good faith and not for compensation.

1 Subsequent statutory references are to the Health and Safety Code unless otherwise noted.

We affirm the judgment. We agree with the trial court’s conclusion that the risks Fisher expressly assumed when he signed the release included the risk of the accident he suffered. On the ski patrol issue, however, we will not reach the issue of whether section 1799.102 applies. This would require us to decide whether “for compensation” in that statute means for any compensation or for compensation specifically by the injured person–a question which, under the circumstances, it is unnecessary to decide. Instead, we hold that the claim of negligent first aid by the ski patrollers is barred by section 1799.108, which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith. There is no triable issue of fact regarding whether the ski patrollers were grossly [*3] negligent or acted in bad faith, so summary judgment on this claim properly was granted.

FACTUAL AND PROCEDURAL HISTORIES

Fisher filed his complaint on January 17, 2008. It alleged that on January 20, 2007, “while skiing at a safe speed and in-bounds [on] a properly marked ski slope, [Fisher] encountered a large hole in the snow which was not naturally occurring or obvious.” He crashed. When ski patrol personnel came to the scene, they allegedly failed to provide proper assistance. The accident resulted in Fisher’s quadriplegia. The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident. Fisher voluntarily dismissed the second cause of action, pertaining to equipment, on March 19, 2009.

Defendants filed a motion for summary judgment. With it, they submitted a copy of a release Fisher signed when he rented his skis at the ski shop at Sierra Summit on the day of the accident. The document, a single sheet of 8-by-14-inch paper, printed in four columns [*4] going down the narrow axis of the paper, sets out two distinct agreements, with two separate places for the customer’s signature. The first agreement, occupying the first column, pertains exclusively to equipment. It reads:

“PLEASE READ CAREFULLY BEFORE SIGNING EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY DO NOT SIGN UNTIL YOU HAVE RECEIVED YOUR EQUIPMENT

“I understand how this ski (snowboard, skiboard) boot-binding system works and I have been fully instructed in its proper use. Any questions I have had about this equipment have been satisfactorily answered. I agree that the binding release/retention setting numbers appearing in the visual indicator windows on the binding correspond to those recorded on this form (Alpine only).

“I agree to have user check this equipment before each use, including the binding anti-friction device (Alpine only), and that I will not use this equipment or if I am not the user permit the user to use this equipment if any parts are worn, damaged, or missing. If I am not the user I will provide all of this information to the user.

“I understand that I may return at any time to have this equipment examined, replaced or repaired.

“X

“USER’S SIGNATURE

DATE”

Fisher’s [*5] signature appears on the line. The second column is filled with a box for the customer’s name, address, shoe size, and other information necessary for providing equipment. Fisher filled out this box.

The second agreement occupies the third and fourth columns. It refers to equipment as well, but also contains a more general release of liability. It reads:

“RELEASE OF LIABILITY “1) READ CONTRACT COMPLETELY, SIGN/INITIAL “2) PROCEED TO CASHIER, HAVE DRIVER’S LICENSE/I.D. READY.

“1. I will read the EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY of this agreement, and will be responsible for obtaining all of the information required by that section and will provide a copy of same to the user of this agreement. I will make no misrepresentations to the ski shop regarding the user’s height, weight, and age or skier type.

“2. I understand that ALL FORMS OF SNOW-SLIDING, including skiing and snowboarding, are HAZARDOUS activities. I also understand that all forms of snow-sliding have inherent and other RISKS OF INJURY, INCLUDING DEATH, that reasonable care, caution, instruction and expertise cannot eliminate. I further understand that injuries are common and ordinary occurrences during these [*6] activities. I hereby agree to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any part of the user’s body while engaging in any form of snow-sliding.

“(Please Initial )

“3. I understand that the Alpine ski equipment being furnished by Snow Summit, Inc., and/or by Sierra Summit, Inc., and/or by Bear Mountain, Inc., any of their respective agents, employees, or affiliated corporations (hereinafter collectively referred to as “Summit”), forms all or part of a ski-boot-binding system which will NOT RELEASE OR RETAIN AT ALL TIMES OR UNDER ALL CIRCUMSTANCES. I further agree and understand that any ski-boot-binding system does NOT ELIMINATE THE RISK of injuries to any part of the user’s body. If SkiBoard or Snowboard or any other equipment is being furnished, I understand that these systems are designed to NOT RELEASE and do NOT PROTECT against injuries to any part of this user’s body.

“(Please Initial )

“4. I hereby FOREVER RELEASE SUMMIT, as well as the equipment manufacturers and distributors from, and agree to indemnify them and hold them harmless for, any and all responsibility or legal liability for any injuries or damages to any user of any equipment [*7] rented with this form, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT. I agree NOT to make a claim against or sue Summit, or any of the equipment manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment. I accept full responsibility for any and all such injuries and damages.

“(Please Initial )

“5. Summit provides NO WARRANTIES, express or implied. This equipment is accepted “AS IS.” I will accept full responsibility for the care of the listed equipment. I agree to return all rented equipment by the agreed date to avoid additional charges.

“(Please Initial )

“6. I have read this agreement and understand its terms. I am aware that this is a binding contract which provides a comprehensive release of liability. However, it is not intended to assert any claims or defenses that are prohibited by law. I agree that the foregoing agreement is intended to be as broad and inclusive as is permitted by law and that if any portion or paragraph is held invalid, the balance shall continue in full legal force and effect.

“X

“USER’S SIGNATURE

DATE”

Fisher [*8] signed at the bottom and initialed in each place indicated.

Defendants argued that this release constituted Fisher’s express assumption of the risk of having the accident he had and that it formed the basis of a complete defense to all Fisher’s claims. Defendants argued that, apart from the release, all Fisher’s claims were also barred by the common-law doctrine of primary assumption of the risk, set out in Knight v. Jewett (1992) 3 Cal.4th 296 and its progeny. They further contended that Fisher could not produce evidence to support his claims that they were negligent in maintaining the property or providing first aid.

To support the contention that Fisher could not prove negligent maintenance of the property, defendants produced evidence that their personnel had inspected the area where Fisher crashed a number of times the day before and the day of the accident and did not find any condition requiring marking or correction. Defendants also pointed to Fisher’s deposition testimony, implying that he was not on a groomed ski run when he crashed: “And when I skied from one run to the next, I encountered a hole that seemed to be between the two runs.”

To support the contention that Fisher [*9] could not prove negligent first aid, defendants produced evidence that Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop. Defendants argued that these facts showed Fisher had already become paralyzed in the crash and that his injuries could not have been caused by anything done by the ski patrollers. Defendants also argued that there was no evidence of any act or omission by the ski patrollers that would have caused additional injury to Fisher.

On the claim of negligent first aid alone, defendants also relied on section 1799.102. At the time, 2 that section provided:

“No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.”

Defendants argued that their ski patrollers were immunized by this statute because they did not receive any compensation [*10] from Fisher. They acknowledged that no published California case has interpreted the phrase “not for compensation” in this statute; they relied on out-of-state cases applying other states’ similar statutes.

2 Section 1799.102 was amended effective August 6, 2009. (Stats. 2009, ch. 77, § 1.) The former version applies to this case.

Defendants additionally relied on section 1799.108, which provides:

“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”

Defendants presented evidence that all the ski patrollers involved had the certification required by this section. They argued that Fisher could present no evidence that the patrollers who assisted him acted in bad faith or with gross negligence.

In opposing the motion for summary judgment, Fisher argued that the release did not apply to his accident because it only released defendants’ liability for injuries arising from problems with the rented [*11] equipment. The court could not grant summary judgment based on the release, he argued, because this was a reasonable interpretation of an ambiguous contract. It was patently ambiguous, he argued, because a reasonable person could interpret its terms to mean that liability was released only for injuries related to equipment failures. It was latently ambiguous because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter. Even if the release did relate to liability for accidents resulting from the condition of the slopes, Fisher argued, it would not bar an action for a dangerous condition that existed because of defendants’ negligence. In addition, even if the release covered defendants’ negligence, it did not cover the particular kind of negligence that caused Fisher’s injuries because releasing liability for injuries caused by falling in an artificially created hole was not reasonably related to the parties’ purpose in entering into the release.

Responding to defendants’ argument that there was no evidence to support his claim that [*12] the accident resulted from their negligent maintenance of the slopes, Fisher submitted evidence intended to show that the hole was on a groomed slope, meant to be skied on by defendants’ patrons, and was not naturally occurring. He cited his own deposition in which he testified that he did not ski on any ungroomed areas. He further testified that there was a wall of ice on the far side of the hole as he skied into it and that the wall of ice “seemed to have a groomed edge on the top of it ….” Fisher also submitted a declaration asserting that the hole was “manmade.” The declaration does not, however, explain how Fisher knew it was manmade. In addition, Fisher pointed to deposition testimony by Sierra Summit personnel acknowledging that holes or walls in the snow can inadvertently be created by snow grooming equipment.

In response to defendants’ claim that Fisher could not produce evidence of negligent first aid, Fisher argued that if he could sit up and wave his arms at the time when the ski patrollers found him, that could mean the patrollers added to his injuries through their first aid. He also claimed the defense was not entitled to summary judgment on the claim unless it offered [*13] expert medical testimony that the ski patrollers acted reasonably.

Fisher argued that the doctrine of primary assumption of the risk does not apply to this case. He said the doctrine applies only to risks inherent in the risky activity, and the risk of an accident like his is not inherent in skiing if the hole was artificial and was present because of defendants’ negligence.

On the ski patrol claim, Fisher contended that section 1799.102 was inapplicable because the ski patrollers were compensated by defendants. He argued that the statute requires simply that aid be given “not for compensation”; that defendants’ view would read words into the statute that are not there; and that this would be improper, regardless of what out-of-state cases interpreting other statutes might say. Fisher also argued that summary judgment could not be granted based on section 1799.108 because of the facts that he was combative and tried to sit up while he was being aided, combined with defendants’ failure to produce an expert opinion. Fisher did not explicitly say how these points helped him, but presumably he meant they showed there was a triable issue of whether the ski patrollers were grossly negligent. [*14] Fisher also did not explicitly say why his ski patrol claim fell outside the release or outside the doctrine of primary assumption of the risk, but his arguments on those topics implied that neither defense would apply because the risk of negligent first aid was not related to equipment failure and not an inherent risk of skiing.

The trial court granted the motion for summary judgment, basing its ruling on the release and on section 1799.102. It held that the release barred Fisher’s claim that his crash was caused by a hole negligently allowed to exist on a slope because the release “clearly and unambiguously releases defendant from liability for injuries or damages caused by defendant’s negligence and which occur to any user of rented equipment, a status which plaintiff indisputably occupied.” It stressed that the release “clearly expresses plaintiff’s agreement not to sue defendant and to accept full responsibility for all injuries and damages relating to or arising from … ‘any snow-sliding activities ….'” The court rejected Fisher’s contention that the release was ambiguous: “[B]y its express terms [it] is not limited to damages or injuries caused by the equipment, but extends to [*15] any claims relating to or arising from snow-sliding activities.” In applying section 1799.102 to the negligent first-aid claim, the court acknowledged that no California cases have interpreted the phrase “not for compensation.” It agreed with defendants’ view that the phrase means not for compensation by the injured party.

DISCUSSION

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) We view the facts in the light most favorable to the nonmoving party and assume [*16] that, for purposes of our analysis, his version of all disputed facts is correct. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.) A moving defendant can establish its entitlement to summary judgment by either (1) demonstrating that an essential element of the plaintiff’s case cannot be established, or (2) establishing a complete defense. (Code Civ. Proc., § 437c, subd. (o).)

I. Dangerous condition of property claim

Fisher contends that the trial court erred in applying the release of liability he signed to bar his claim that defendants caused his injuries by negligently allowing the existence of the hole into which he skied. We disagree.

A contract in which a party expressly assumes a risk of injury is, if applicable, a complete bar to a negligence action. (Knight v. Jewett, supra, 3 Cal.4th 296, 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372.)

“In order for a release of liability to be held enforceable against a plaintiff, it ‘must be clear, unambiguous and explicit in expressing the intent of the parties’ [citation]; the act of negligence that results in injury to the releasee must be reasonably related to the object [*17] or purpose for which the release is given [citation]; and the release cannot contravene public policy [citation]. A release need not be perfect to be enforceable. [Citation.]” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-1305 (Sweat).)

We address each requirement in turn.

A. The release is clear, unambiguous, and explicit in expressing the intent of the parties

We agree with the trial court’s conclusion that the release Fisher signed applied unambiguously to injuries arising from skiing accidents, including the injuries Fisher suffered, even if caused by defendants’ negligence. The release stated that Fisher “agree[d] to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any party of the user’s body while engaging in any form of snow-sliding.” He agreed to “FOREVER RELEASE SUMMIT,” as well as the equipment manufacturers and distributors, from “any and all responsibility or legal liability for any injuries or damages to any user of any equipment rented with this forms, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT.” He also agreed “NOT to make a claim against or sue Summit, or any of the equipment [*18] manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment.” He accepted “full responsibility for any and all such injuries and damages” and stated that he was “aware that this is a binding contract which provides a comprehensive release of liability” and “is intended to be as broad and inclusive as is permitted by law ….” This language applies to personal injuries sustained by a skier who crashes while skiing at the resort, even if the crash is caused by a defect in the snow or ground surface caused by defendants’ negligent maintenance of the property. Fisher’s argument that the agreement is patently ambiguous because it contains references to the rented equipment and the equipment manufacturers and distributors is not persuasive. The agreement plainly states that Fisher releases the ski resort and the equipment manufacturers and distributors from liability for injuries caused by skiing as well as those caused by equipment problems.

The release also is not latently ambiguous. The parties disagree about whether extrinsic evidence should be considered to determine [*19] whether the release is latently ambiguous, but we need not resolve that debate because no latent ambiguity appears even if the extrinsic evidence Fisher relies on is considered. Fisher relies on evidence that the release is given to customers when they rent equipment; that neither it nor any other release is obtained from customers who ski without renting equipment; and that because of these circumstances he assumed, without reading the release, that it applied only to injuries caused by problems with the rented equipment. None of this detracts from the clarity of the release’s language or renders reasonable an interpretation according to which the release applies only to injuries arising from the rented equipment.

B. The alleged negligence that resulted in the injury was reasonably related to the purpose for which the release was given

The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938 [if releases of liability in cases [*20] arising from hazardous recreational pursuits are not enforced, “many popular and lawful recreational activities are destined for extinction”].) The alleged negligence in maintenance of the property that Fisher says caused his injuries has a reasonable relationship with this purpose.

Fisher argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the release only applies to accidents caused by equipment problems and was only given to customers renting equipment. We have already explained why the release cannot reasonably be understood as applying only to accidents caused by equipment problems. The fact that the resort gave the release only to skiers who rented equipment does not show that its purpose is limited to accidents arising from equipment, for its plain meaning is to the contrary. It may be that the release fails fully to achieve its economic purpose if the resort does not obtain it from all skiers, but that does not prove it has a different purpose.

Fisher also argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the risk of skiing into an artificially created hole [*21] in a groomed part of a slope is not a reasonably foreseeable risk, and there is at least a triable question of whether the hole he skied into was artificially created and in a groomed part of a slope. He cites Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490-1491 (Bennett), which reversed summary judgment against the signer of an agreement releasing the defendants from liability for injuries, including injuries caused by the defendants’ negligence, sustained by the signer in a bicycle race. The court held that there was a triable question of whether the accident–a collision with a car on a race course that was closed to traffic–was reasonably foreseeable.

The Bennett court did not cite any authority directly supporting the proposition that an agreement releasing liability for negligence applies only to harms arising from reasonably foreseeable negligence. It relied instead on quotations from the Restatement Second of Torts and the treatise of Prosser and Keeton to the effect that releases apply only to harm-causing conduct of the defendant that was within the contemplation of the parties. (Bennett, supra, 193 Cal.App.3d at p. 1490.) It is not by any means [*22] clear to us that, as a general proposition, parties who enter into a release of liability for negligent conduct related to a hazardous recreational activity intend the release to apply only to negligent conduct that the parties can reasonably be expected to think of in advance. This is especially implausible where, as here, the release explicitly applies to all skiing-related injuries even if caused by defendants’ negligence. To the extent that Bennett is in conflict with these views, we decline to follow it. Further, even if we were applying the holding of Bennett, we would not conclude that it stands in the way of summary judgment here. Even assuming there are triable questions of whether the hole was artificial and whether it was on a groomed portion of the slope, Fisher has suggested no persuasive reasons why a crash caused by negligently maintained slope conditions would not be reasonably foreseeable. What sort of negligence would be more likely to cause a skiing accident than negligence in failing to keep the slopes in good condition?

Fisher relies also on Sweat, supra, 117 Cal.App.4th 1301, in which we held that a release did not apply because the defendant’s negligence was not [*23] reasonably related to the purpose of the release. In that case, the plaintiff attended an auto race where, if an audience member sat in the bleachers in the pit area, the track owners required him or her to sign a release of liability for any claim of injury arising while the audience member was in that area, even if caused by the owners’ negligence. The plaintiff signed the release, sat in the pit area bleachers, and was injured when the bleachers collapsed. After a bench trial, the court found this release was a complete defense. We reversed (id. at p. 1303), concluding that the release was ambiguous; that extrinsic evidence was necessary to resolve the ambiguity; and that, in light of that evidence, the release’s only purpose was to allow audience members to observe the race from the pit area. The collapse of the bleachers had no causal relation to dangers arising from the race, so the release was not applicable to liability for injuries resulting from that collapse. (Id. at pp. 1305-1308.)

Sweat is distinguishable from this case. Here we have an unambiguous release barring negligence liability for any injury resulting from skiing, among other activities. A skiing accident caused [*24] by a negligently maintained ski trail falls within the scope of the release.

The final paragraph of our analysis in Sweat is instructive:

“Here, appellant’s express assumption of risk would cover all hazards related to the automobile race and its observation. As appellant points out, those might include a tire separating from a car and hitting someone, a car leaving the track and striking a spectator, or someone being burned by a crash. This is not an exhaustive list. One can even anticipate the flying tire, the errantly driven car, or the flames from the crash causing the collapse of bleachers. The race activity might lead to less dramatic accidents: a person slipping on automotive grease in the pit area, or even a race observer slipping on spilled soda while keenly watching the race as he or she steps through the bleachers. The release agreement here does not, however, contractually charge appellant with assuming the risk of injury from defectively constructed or maintained bleachers, should a full trial on the merits establish such facts.” (Sweat, supra, 117 Cal.App.4th at p. 1308.)

The accident in Sweat fell outside the release because it was causally unrelated to the race, to allow [*25] the observation of which was the purpose of the release. An accident unrelated to skiing, such as a fall inside a ski lodge caused by a defect in the floor unreasonably allowed to be present, would be comparable to the accident in Sweat and would fall outside the release, for it would be causally unrelated to skiing or any of the other activities mentioned in the release. Here, however, if the skiing accident were caused by defendant’s negligent maintenance of the slopes, as Fisher claims, it would be comparable to an accident caused by something negligently allowed to remain on the floor in the race-observation area–grease or soda–by the track owners in Sweat. That cause is reasonably related to skiing and consequently to the purpose of the release.

C. The release is not against public policy

Fisher argues that there is a public policy of “fundamental fairness,” and that the release violates this policy because it “appears, on its face, to only relate to the rental equipment ….” As we have said, this is not the case. Fisher also repeats here the argument that, because the release was obtained only from skiers who rented equipment, it is only applicable to accidents caused by the equipment. [*26] Again, this circumstance does not negate the explicit statements in the agreement releasing defendants from liability for any injuries sustained while the customer engages in snow-sliding activities.

Fisher also argues that the release violates public policy because it allows defendants to be negligent in maintaining their ski slopes without incurring liability. As we have seen, however, the law allows releases of liability for injuries caused by negligence during hazardous recreational activities, and does so in order to prevent exposure to liability from making those activities economically infeasible. Finally, Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.

The parties have extensively briefed the subject of primary assumption of the risk, but our holding on the release makes it unnecessary for us to address that issue.

II. Negligent first-aid claim

Fisher argues that the [*27] trial court erred when it held that section 1799.102 barred his claim of negligent first aid by the ski patrollers. He says summary judgment could not properly be granted on this basis because there was evidence that the ski patrollers received compensation for performing their duties. We need not break ground in this unsettled area because an alternative basis for the judgment–a basis raised by defendants in the trial court–is available. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [appellate court may affirm summary judgment on any correct legal theory raised by parties in trial court].)

This basis is section 1799.108, which immunizes certified first-aid providers except in cases of gross negligence or actions not taken in good faith. In support of their motion, defendants submitted evidence that all the ski patrollers who aided Fisher were properly certified. They also submitted evidence of the aid the patrollers gave, arguing that nothing in their actions or the surrounding circumstances gave any support to a claim of gross negligence or bad faith. This evidence included Fisher’s own statement in his deposition that the only thing he remembered about [*28] the people who aided him was that they insisted he lie still. It also included declarations by three patrollers who assisted Fisher: Mary Warner, Russ Bassett, and Richard Bailey. According to these declarations, a guest was helping Fisher when the ski patrollers first arrived. The guest said he was an EMT. The patrollers brought a toboggan, a backboard, a cervical collar, splints, and oxygen. Fisher was on the ground and the guest was correctly supporting his cervical spine, according to one of the patrollers. Fisher repeatedly yelled that his arms, legs, and back were broken and that he was going into shock. When one of the patrollers pinched Fisher’s leg and determined that he had no feeling in it, Fisher said he was paralyzed and became agitated. He swung his arms and tried to sit up until the patrollers calmed him and persuaded him to be still. The patrollers used the toboggan and backboard to bring Fisher to the first-aid patrol room, where his care was taken over by paramedics. The paramedics decided to transport Fisher to the hospital by ambulance.

In his opposition to the motion, Fisher presented no additional evidence. He only pointed to the evidence that he waved his arms [*29] and tried to sit up. Presumably his point was that, in the end, his injuries were too severe to allow this and therefore the patrollers might have made the injuries worse. He did not say so explicitly, however, and presented no supporting evidence. He also pointed out that defendants did not present an expert’s opinion that the patrollers did not act negligently.

A defendant moving for summary judgment has, at all stages, the burden of persuading the court that the plaintiff cannot establish an essential element of his cause of action. The defendant need not conclusively negate an element of the cause of action, however. Rather, the defendant must first bear a burden of producing evidence making a prima facie showing of the nonexistence of a triable issue of material fact. The burden of production then shifts to the nonmoving plaintiff, who must produce evidence making a prima facie showing that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851, 853-855.)

In this case, Fisher does not claim there is a triable issue about whether the ski patrollers were certified. 3 He only claims there is a triable issue about whether they were [*30] grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith. As described in the ski patrollers’ declarations, the first aid they gave included nothing upon which a claim of gross negligence or bad faith could be founded. The fact that Fisher sat up and waved his arms, or attempted to do so, does not show that the ski patrollers made his injuries worse. There was no evidence that the sitting and waving or attempted sitting and waving were actions that later became impossible for Fisher, and no evidence that even if they did, this was because of anything done or omitted by the ski patrollers. Contrary to Fisher’s argument, there is no authority for the view that summary judgment can be obtained by a defendant on a claim of grossly negligent first aid only if the defendant presents an expert opinion that there was no gross negligence. Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of [*31] persuasion that Fisher cannot prove an essential element of this cause of action.

3 At oral argument, Fisher claimed, for the first time, that “some” of the ski patrollers were not certified. This claim does not appear in his discussion of this issue in his opening brief or his reply brief. It did not appear in his memorandum of points and authorities in opposition to the motion for summary judgment or the errata he filed to that memorandum. In their statement of undisputed facts, defendants stated that responders Russ Bassett, Richard Bailey, Marc Smith, Tim Crosby, and Mary Warner were qualified in first aid through, or were first-aid instructors for, the American Red Cross or the National Ski Patrol. Fisher agreed that these facts were undisputed. He did not argue that these credentials did not amount to certification within the meaning of section 1799.108. His separate statement of disputed facts did not state any contrary evidence or assert that any uncertified patrollers administered first aid. A factually unsupported claim made for the first time at oral argument on appeal is not grounds for reversing summary judgment.

Defendants argue that the release, the doctrine of primary [*32] assumption of the risk, and section 1799.102 all also support the court’s decision. We need not address these additional theories. 4

4 In their appellate brief, defendants assert that the trial court “implicitly determined the Release did not apply to the actions of the ski patrol” because it granted summary judgment on that claim on a different basis. This is not correct. A court does not implicitly reject a theory merely by basing a decision on another theory. “[A]n opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)

DISPOSITION

The judgment is affirmed. Defendants are awarded costs on appeal.

Wiseman, Acting P.J.

WE CONCUR:

Kane, J.

Poochigian, J.

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Vermont Skier Safety Act

Vermont Skier Safety Act

1 V.S.A. § 516 (2012)

§ 516. State sports

   The state winter sports shall be skiing and snowboarding.

 

VERMONT STATUTES ANNOTATED

TITLE TWELVE.  COURT PROCEDURE 

PART 2.  PROCEEDINGS BEFORE TRIAL 

CHAPTER 27.  PLEADING AND PRACTICE 

SUBCHAPTER 2.  PLEADINGS GENERALLY

§ 513. Skiing, injuries sustained while participating in sport of

   An action to recover for injuries sustained while participating in the sport of skiing shall be commenced within one year after the cause of action accrues, and not after.

12 V.S.A. § 1037 (2012)

§ 1037. Acceptance of inherent risks

   Notwithstanding the provisions of section 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.

§ 1038. Skiing off designated ski trails; collision; duty to report; recovery for rescue expenses

   (a) Use of ski area facilities. — No ski area, its owners, employees or agents shall be held responsible for ensuring the safety of or for damages, including injury or death, resulting to persons who utilize the facilities of a ski area to access terrain outside open and designated ski trails. Ski areas shall not be liable for damages, including injury or death, to persons who venture beyond such open and designated ski trails.

(b) Collision at a ski area.

   (1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.

   (2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.

(c) Civil action to recover. — A person who uses the facilities of a ski area to access terrain outside the open and designated ski trails, shall be liable in a civil action brought by any person, including a ski area, rescue organization, municipality or the state, to recover expenses incurred to provide rescue, medical or other services to such person for circumstances or injuries which resulted from such use. The entity seeking to recover may also recover reasonable attorney fees and court costs. No ski area, its owners, agents or employees, individual or entity, municipal or otherwise, shall be held liable for any acts or omissions taken in the course of such rescue operations unless such act or omission constitutes gross negligence.

 


Have you seen or heard of these in the US?

10 FIS Rules for skiing and snowboarding

Here in the US we know Your Responsibility Code (or one of the million variations.)  The FIS Rules are similar but different. FIS or International Ski Federation, Federation International de Ski is mostly own for making the rules for ski races. However, outside of the US FIS is the ski association.

1. Respect for others

A skier or snowboarder must behave in such a way that he does not endanger or prejudice others.

2. Control of speed and skiing or snowboarding

A skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather as well as to the density of traffic.

3. Choice of route

A skier or snowboarder coming from behind must choose his route in such a way that he does not endanger skiers or snowboarders ahead.

4. Overtaking

A skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement.

5. Entering, starting and moving upwards

A skier or snowboarder entering a marked run, starting again after stopping or moving upwards on the slopes must look up and down the slopes that he can do so without endangering himself or others.

6. Stopping on the piste

Unless absolutely necessary, a skier or snowboarder must avoid stopping on the piste in narrow places or where visibility is restricted. After a fall in such a place, a skier or snowboarder must move clear of the piste as soon as possible.

7. Climbing and descending on foot

A skier or snowboarder either climbing or descending on foot must keep to the side of the piste.

8. Respect for signs and markings

A skier or snowboarder must respect all signs and markings.

9. Assistance

At accidents, every skier or snowboarder is duty bound to assist.

10. Identification

Every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.

 

However, the rules are a lot clearer and forceful in several areas.

First, there are more FIS Rules. Ten rather than the average of seven. (Remember Your Responsibility Code is not adopted by anyone but supported by NSAA and NSP. Resorts, or anyone, can alter, add or change the code.)

Second the FIS Rules cover additional things such as stopping at accidents and ascending up hill.

Finally, the FIS Rules are more specific on several areas. The Your Responsibility Code is interpreted daily in courts about what has more significance or importance. Mostly, which is more important, where you stop, how you start or whether the overtaking skier has issues. Any collision on the slopes is a battle between these issues with the injured party arguing that no matter the uphill skier is at fault. The FIS Rules eliminate a lot of that argument.

10-fis-rules-for-conduct-1.pdf

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What was the purpose of three days of Denver Post making things up about Colorado Ski Resorts?

The accomplishment was to put false information about ski resorts into the media stream.

The third and final installment of the Denver Post “investigation” (which in this case means reading their own newspapers and talking to a few people) into Colorado Ski Areas turned up very little.

First let’s get back to where the newspaper made things up.

The newspaper speculated that:

Not one of those who died in the past five seasons appeared to be drunk.

That would sort of indicate the newspaper had reporters there when someone died, however, we know that was not true. So that information as taken from “…autopsy reports, resort press releases and local newspaper accounts.” Newspaper accounts are from press release’s eye-witness accounts, Autopsy reports how they died, not their Blood-Alcohol Level and very few of those are available for review by members of the media. Remember my comments in earlier responses to privacy, both victims and the victims’ families. So the statement about the fatalities being drunk is basically made up.

The next speculation is:

If those who died had anything in common, it was catching an edge or losing control just long enough to crash into a tree on the side of a trail.

Granted if I were to guess how someone hit a tree, “catching and edge” is a good guess. But it is no more than that a guess.

Back to Bad Reporting

The article comes back around to the issue of state or federal oversight. Which is a bunch of hogwash. In Colorado, there is a US Forest Service employee who is tasked with watching over the ski areas that operate on US Forest Service land under a permit. Each county in the state has a health department which checks the restaurants and other health concerns just like any other business in the county. And each county has a sheriff who has the right to enter upon the ski area property which is open to the public to investigate a crime.

As far as releasing deaths and injuries to the public.

Let’s see what associations do report injuries and fatalities:

 

Flag Football

Hockey

Softball

Little League

American Kennel Club

Lady Bass Anglers Association

Climbing Wall Association

Paintball

 

Yet you know that people playing sports get hurt. Torn ligaments in any football game, missing teeth in hockey, torn everything and road rash in softball, injuries from getting hit by a ball in little league, dog bites, drowning, etc. etc. etc. If you play in a sport you can get hurt, and you can die.

Life is a sexually transmitted disease that is always fatal.

You can sit upon the couch and watch, or you can get out there, take on the risks and do it.

Then the article starts to weave a scary message around misstatements.

This information, however, is not separated by resort, or even by county, making it impossible for a concerned consumer to compare the safety records of ski areas  in Colorado or nationally. It also keeps consumers in the dark about what measures to take to protect themselves.

Say the resorts listed every injury and every death that occurred on it. What information in that could the consumer use to protect themselves? The article listed all the ways that people on slopes die that it could find.

…resulted from neck and skull fractures, torn aortas and suffocation after falling into tree wells, as well as inbounds avalanches and one person being impaled on a tree branch.

Neck and skull fractures occur when you hit something, hard. Torn Aortas occur when you hit something, hard. Of the four things listed, trees are the culprits that are the reason for deaths.

If you want consumer protection issues, stay away from trees. How can a journalist, let alone an editor, accuse resorts of hiding facts that could keep consumers safe then later in the same article state that trees cause people to die? You hit a tree at a high rate of speed, and you die.

So if you were comparing safety records of Colorado Ski Resorts, the safest resort would be one without any trees.

What other information could you glean from accident reports? Better, how many consumers would read them anyway.

Read the article: Colorado skiers die on groomed, blue runs after hitting trees

I’m not done though; the story has a little more.

After reading the article, along with a poll the Denver Post placed on its front page on Wednesday, March 20, I was curious. The poll asked readers to vote on whether ski areas should report deaths and injuries things got interesting.

In light of a recent Denver Post series on ski safety, should ski resorts be required to publicly report skiing and snowboarding deaths and injuries?

The articles with the poll are setting ski areas up for litigation. If deaths and injuries are reported, plaintiff’s attorneys will have the opportunity to contact injured guests. So basically the series of articles is an attempt to create more litigation for plaintiff’s attorneys.

The articles continually wanted the ski areas to do something that no other sport organization does, report injuries.

Why is that of interest?

The author of the three part article Karen E. Crummy is a graduate of University of San Francisco School of Law. Is the Denver Post attempting to use its influence, knowingly or unknowingly, to create more litigation? What is the relationship between Ms. Crummy and the plaintiff’s bar?

I could be wrong, but there seems to be a clear link; clearer than many of the stretches made in the articles.

See Karen E. Crummy — The Denver Post

Me?

I was given a head’s up about the articles from two different sources; Someone in the industry and the NSAA. I was given material to use, but I used none of it. The research I’ve done you can do on your own on the net, except for my experience from working for a resort for a couple of years more than a decade ago. In fact, other than my experience, everything in my articles can be verified online.

No one is paying me to do this (unless you want to!). I’m not getting anything from doing this, other than some personal satisfaction from trying to set the record straight.

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

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

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This is becoming a pain, Denver Post confusing irony and ironic.

Now the post is complaining about releases/waivers!

Here is the link to the Denver Post Ride the Rockies Waiver. See the Denver Post wants to protect itself with a waiver: http://rec-law.us/ZWjvaU

This is the link to the Denver Post Ride the Rockies volunteer manual which requires volunteers to sign a waiver: http://rec-law.us/Yl40em

Why am I giving you these? Because the second article in the Denver Post series about Colorado Ski areas complains about the Colorado Ski Industry using waivers. How the Denver Post can condemn waivers, while it uses waivers is at the least, interesting, better irony.

Why does the ski area use waivers? It saves you money. Yes, you. If you do not want to sign a waiver, you can skip buying a season pass. If you want to save money, then the money-saving needs to go both ways. The resorts need to save money also. A waiver allows them to save money by reducing the chance of litigation and the accompanying costs.

A waiver or waiver does something else for the skiers who sign them. It lets them know in advance who is going to pay their medical bills. That may seem to be at odds, but look at it from a different perspective. You can go skiing without signing a waiver rolling the dice on getting hurt and rolling the dice on suing to pay for your medical bills.  Now you know.

I want to ski 20 times and save money. Sign a waiver and save $1500.  Don’t want to sign a waiver, pay $2000+, it’s simple math.

The article says the waiver punishes Colorado residences because they have to sign a waiver. Colorado residents get to ski for $500 at Vail, et al as many times as they want.

This article, like the first article in the series, takes the law and misses it.

Operators do not have to post warning signs of maintenance equipment going to or from a grooming project….

However, the Colorado Skier Safety Act states:

33-44-108. Ski area operators – additional duties.

(1) Any motorized snow-grooming vehicle shall be equipped with a light visible at any time the vehicle is moving on or in the vicinity of a ski slope or trail.

(2) Whenever maintenance equipment is being employed to maintain or groom any ski slope or trail while such ski slope or trail is open to the public, the ski area operator shall place or cause to be placed a conspicuous notice to that effect at or near the top of that ski slope or trail. This requirement shall not apply to maintenance equipment transiting to or from a grooming project.

(3) All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following: One 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.

The article attacks season pass waivers on many grounds. However, the article forgets that waivers are an integral and necessary part of Colorado’s biggest industry: tourism and travel. You sign a waiver to go whitewater rafting, canoeing, mountain biking, ride a horse, a zip line or go on a ropes course. Waivers allow the owner of a company to offer these activities to tourists at a price that makes them want to come to Colorado. article attacks season pass waivers on many grounds. However, the article forgets that waivers are an integral and necessary part of Colorado’s biggest industry: tourism and travel. You sign a waiver to go whitewater rafting, canoeing, mountain biking, ride a horse, a zip line or go on a ropes course. Waivers allow the owner of a company to offer these activities to tourists at a price that makes them want to come to Colorado.

Why is the Denver Post attacking the business that keeps Colorado afloat?

Read the article: Colorado ski industry enjoys protection from law, waivers

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

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

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Denver Post, Ski Area, Colorado Ski Country USA, Ski Resort, Colorado Skier Safety Act, Colorado, Ski Area, Ski Resort, Ski Patrol, Denver Post, Colorado Ski Country, Colorado Ski Country USA, NSAA, NSP, National Ski Area Association, National Ski Patrol,

 


Misleading article from the Denver Post about CO Ski areas; but also just plain wrong

I lost a lot of respect for the Denver Post today.

This is my review of an article titled Colorado system for investigating ski accidents raises concerns in the Denver Post Sunday March 17, 2013.

First of all, let’s correct the article from a legal and factual standpoint!

When someone dies or is seriously injured on a Colorado ski slope, it is ski patrollers — not trained police officers, sheriff’s deputies or forest rangers — who document and determine what happened.

This statement is false if you believe it says no one else can investigate. The statement is misleading in that it makes you think no one else investigates major accidents.

Law Enforcement Investigates Possible Crimes.

It is patrollers that investigate on behalf of the ski area. No patroller investigates on behalf of anyone else, nor can they. They have not been licensed, trained nor are they allowed to. If someone else wants to investigate, they can use the powers given to them by contract (US Forest Service) or jurisdiction (Sheriff) and investigate.

Ski Patrollers don’t determine who is at fault; they try to determine what happened. That is all they are trained to do and that is all you want them to do. Volunteers and poorly-paid hard-working men and women are ski patrollers. The have been trained to get injured people off the mountain as best they can.

Any law enforcement agency with jurisdiction could investigate if they wanted to. They do not need permission; they just access the land and go investigate.

The reason why most law enforcement agencies do not investigate was set out in the article, just not recognized as the answer to their own question the article asked.

Many times, those agencies — responsible for investigating potential criminal activity, not skiing accidents — aren’t called at all.

Unless there has been a crime, law enforcement has no duty to investigate. If they investigated every crash, they would still be working on my mountain-bike crashes from last summer on US Forest Service and BLM (Bureau of Land Management) land.

Information

As a result, family members may have to accept the word of a resort employee about the circumstances that led to their relative’s death or serious injury — and typically; they need a subpoena to get even that, attorneys say.

Getting information from the resorts is difficult. Normally, the resort requires that you prove a legal need; you must be a relative or the injured person. Resorts have reasons for this. You do not want this information to go to anyone but the family because of privacy issues.

What if your relative died or was hurt at a resort? Would you be interested in having any of the following in the public domain?

·         The injured skier smelled like alcohol. His blood-alcohol level was 2.8.

·         The witness, girlfriend of the injured said…… (Spouse was home with the kids.)

·         The injured commented that’s the last time he calls in sick to work and goes skiing.

I’ve read reports with 2 of the above on the reports, and I’ve heard about the third. Is that information you want to be public about someone you love?

What about hearing about the fatality of a family member from the authorities before you read about it online? This article ignores those issues, but ski resorts try to respect the wishes of family members.

Is your need to know greater than their right to a little kindness and privacy?

What information can you get from AT&T, Exxon, or GE about their latest accidents? Unless a business is required to report certain kinds of accidents, No Business gives out its accident reports.

If you ask an attorney to get you a report, the ski area is going to respond as if the ski area is going to be sued. Consequently, when facing a lawsuit, you shut the doors. If you want a copy of the report from your or a close family member’s accident, send a letter. You won’t get names or contact information of the patrollers. It is not their job to deal with you.

Of the state’s 25 ski areas, only one — Wolf Creek Ski Area — would discuss ski-patrol training and accident investigations.

Most resorts, nationwide follow the procedures of the National Ski Patrol (NSP). Every resort differs from other ski areas, but in general, you can research how something is investigated by reviewing the NSP website and several other websites. How do you know how law enforcement investigates accidents?

The other 24 resorts either refused to answer questions regarding ski patrol or did not respond to repeated calls and e-mails from The Post.

If someone from the press, including me, is calling to ask questions, you get a little nervous. You should be nervous when I call, and I get nervous when the press calls.

While working at a resort, I received a phone call from a member of the press who said they were writing a follow-up article to one I had written for a magazine several years before. That person lied to me. They were writing an article about ski resorts and quoted me as an employee of the resort. Lesson learned.

Police jurisdiction rare

That is a very misleading heading, sorry, this is a lie. Not rare, it exists at every resort. It is just not exercised. The sole power to exercise the jurisdiction is the law enforcement agency or the district attorney. Just because they do not, does not mean jurisdiction does not exist. There is no place in the US where at least one law enforcement agency has jurisdiction. The hard thing is finding places in the US were only one law enforcement agency has jurisdiction.

The nice thing about the above heading is just the start of an entire misleading paragraph.

Jennifer Rudolph, spokeswoman for Colorado Ski Country USA, the trade group representing all of the ski areas except the four owned by Vail Resorts, said in an e-mail….

Colorado Ski County USA is a marketing group. Its job and why it is paid by the Colorado Ski resorts is to get skiers to ski in Colorado. If you don’t believe me, go to the website and read why it exists: http://rec-law.us/ZoYVRs

Only a few local police departments have any jurisdiction over ski areas, and sheriff’s offices in Summit, San Miguel, Pitkin, Garfield, Routt and Eagle counties said their role is primarily to determine whether an incident involves a crime — such as theft, public intoxication or disruption — or a collision between slope users.

See the above statement about jurisdiction. The statement in the article is absolutely wrong and very misleading. It implies that the ski resorts operate without any law enforcement agency watching what they do. That is not true. If you could find a place where no law enforcement had jurisdiction in the US it would be crowded, full of pot plants and a lot of illegal guns. There would also be hundreds of cops waiting for someone to leave.

Summit County sheriff’s deputies don’t “respond to the majority of skier accidents. If it’s a death, the coroner would respond,” said spokeswoman Tracy LeClair. “Ski patrol usually handles the majority of noncriminalaccidents.”

Let’s look at this article this way.  Who investigates accidents in your house? At least at ski areas, someone does. If there is a fatality at your house, then the same person investigates the fatality in your house as at the slopes: A coroner, unless the accident or fatality is a criminal act.

A coroner’s job is to declare people dead (C.R.S. § 30-10-601) and to determine the cause of death if it is not known or suspicious or from specific causes. (C.R.S. § 30-10-606)

“Ski patrol is there before us. Sometimes, the injured person has been evacuated before we arrive,” he said. “We have to rely on ski patrol and their analysis quite often.”

Thank Heavens! Seriously do you want to wait on the slope with a broken leg or a torn ligament until law enforcement drives from the sheriff’s office puts on skis or unloads a snow machine and comes up the slopes to you?

That is why we have the ski patrol; to get injured people to medical care. Can you see the lawsuit if this occurred? “Sorry mam, I can’t move you with that broken leg until the sheriff investigates.”

If you fall down in your house, do you call the police or the ambulance? If you fall down on the ski slopes do you call the sheriff or the ski patrol?

Sometimes, ski areas don’t give law enforcement information needed for an investigation. In 2004, a Colorado State Patrol sergeant was called to Vail to look into a fatal collision between a 13-year-old skier and an employee-driven snowmobile. He had never investigated a ski injury or fatality.

Sgt. S.J. Olmstead was assigned to the case because county law enforcement “didn’t want to deal with it,” he said in a 2006 deposition. “So somebody had to go take care of it.”

First: The story itself says there have been 47 deaths within five years (from my count of the red dots on the map.) How many police officers would have experience in investigating fatalities that occur on ski resorts?

Second: Vail is the largest employer in Eagle County. Probably, the Eagle County Sheriff’s department saw the fatality the article speaks to as a conflict of interest. Maybe the sheriff’s department knew the snowmobile driver’ or the snowmobile driver’s family. Or members of the sheriff’s department witnessed the accident. There could be dozens of things that triggered a conflict of interest issue in the mind of the Eagle county Sheriff’s department.

And thank heavens it did. Would you buy 100% any report when the Eagle County Sheriff’s department investigates a crime in the ski area of the county’s largest employer who had obvious conflicts of interest?

If you want ski accidents investigated by trained personnel, then contact your representative and have them create a law that says the sheriff’s office shall investigate all ski accidents. (Have fun paying for that one also.)

Third: If you have ever watched TV and watched a cop show, when an arrest is made the bad guy is given their Miranda Warnings, their legal rights. They have the right to remain silent. Vail, could have been held liable for the death, criminally; consequently, during a criminal investigation, the possible criminal should keep their mouth shut!

Ski areas consider ski-patrol and employee reports to be proprietary information. Therefore, victims or their families or law enforcement agencies cannot obtain them without the resorts’ permission — or a court order.

That information is not considered proprietary information, that information is proprietary information. My notes are proprietary information. The recipe you wrote down on a 3 x 5 card is proprietary or confidential information. Work you produce for work is proprietary information.

And again, do you really want your great Aunt Sally learning that her niece died in a ski accident because she was drunk?

I won’t give up my documents to anyone.

What about the rights of the deceased or the deceased family. Information in that report could be embarrassing. Deceased had a blood alcohol level of XX.X. Deceased was skiing with his girlfriend, while his wife was working. Deceased was supposed to be at work. Do you want that information floating around to members of the media or just nosey people?

The press has this idea that they should be entitled to anything they want to report a story. They don’t. There are laws that say what the media, the police and/or any other group can get from a private party or a business.

Then the article starts to complain because the ski patrol investigates an accident, and the cops don’t. The cops plead that they have a hard time getting reports from the ski patrol.

Have you tried getting a police report about an accident from a law enforcement agency? If the police want a report, they should go do it. It takes them a while to get to the far ends of the county, and it takes them a while to hike into the back country or get up the hill at a ski resort. It is a fact of life of a state with lots of wilderness and open space.

Despite the power that ski patrols have,…

What power? The power of the ski patrol is solely the power to transport an injured person down the hill and yank lift tickets of reckless skiers. They are not vested with power or given power by anyone to do anything.

The ski patrol does not have the power to detain someone who is involved in a skier v. skier collision, let alone any other power.

Accident Investigations?

This big issue with accident investigations is confusing. I’ve never had anyone investigate my mountain-bike crashes on US Forest Service land. I’ve never had someone investigate my back-country ski injuries. I’ve never had someone investigate my injuries from rock climbing. Yet there seems to be a big push in the article that 1) accident investigations are not being done and 2) if they are being done they are not being done right.

Automobile accidents are investigated because state statutes require law enforcement to investigate accidents, the damage done and the accidents occur on state land.

Automobile accidents have skid marks, car crumple zones, little black boxes, and tests that show when you hit a guard rail this way at this speed it looks like this. It snows; the wind blows and ski tracks look like every other ski track and are usually wiped out by snowboard tracks. Unless you hit a tree AND leave a mark on the tree or your body it is difficult to determine what happens.

One time in the past, I reviewed an investigation, and then did my own investigation into an accident. I talked to the injured skier and his spouse about what happened. The injured skier did not remember, and we never did figure out how the skier got hurt.

If there is a statute for someone, law enforcement to investigate accidents, then I’m sure their investigations will be better and professionally done. Right now, Ski Patrol accident investigations are done to help the ski area protect itself. The ski patrol is not tasked with any other duty by anyone.

A ski patroller’s job is to determine facts, not guess at what happened.

There is no law, no duty, and no requirement that any accident be investigated.

Accident Investigation Training

The article hits the accident investigation hard by comparing the training to that of National Park Rangers. Rangers are the law enforcement arm of the National Park Service. The job of a Ranger is basically to write tickets and arrest people for major crimes. They are law enforcement. There are statutes and regulations that empower them, command them and require them to investigation accidents and make arrests.

The article also tackles the contractual relationship between the US Forest Service and Vail, quoting from the contract. I would like to see the Denver Post contract with its writers and suppliers. I suspect that if you slam the Denver Post in an article, your career at the post is short lived.

The Bad

The ski industry is paranoid. I’ve been saying it for years. Too paranoid. However, I understand how that paranoia develops. When articles like misstate the facts and make things up, it would make you paranoid also.

As much as ski areas are paranoid the attorneys representing ski areas and the companies insuring ski areas are even more paranoid. They believe it is better not to say anything.

After this article, I understand why.

The Really Bad

The really bad is how misleading this article is. It is a veiled attempt to accomplish some goals, which are unknown at this time.

This article wasted a lot of paper and electrons attempting to make ski areas in Colorado look bad. Ski Areas in Colorado are the finest in the US. Ski Areas in Colorado are no different from any other business. The business has a duty to make a profit, and protect itself from bad publicity and lawsuits. Nothing in this article proved ski resorts did anything wrong or that any other corporation in the US does.

Read the article, the scary part is people out there believe the writer knows what they are talking about.

Disclaimer

No one paid me to write this, no one told me how to write this, no one asked me to write this. However we all have to learn that when we see or smell crap we should clean it up.

What do you think? Leave a comment.

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

Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

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                  Jim Moss

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