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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

33-44-104. Negligence – civil actions.

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

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

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

What about the ski area?

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

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

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

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

Other state ski area statutes

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

[Emphasize added]

Connecticut

Sec. 29-211. (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.

In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to:

(2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act;

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

No skier shall:

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

Idaho

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

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

(7) To post notice of the requirements of this chapter concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices;

§ 6-1106. Duties of skiers

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

North Carolina

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

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

North Dakota

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

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

53-09-05. DUTIES OF PASSENGERS.

Every passenger shall have the duty not to:

8. Wear skis without properly securing ski retention straps.

New York

§ 18-105. DUTIES OF SKIERS

All skiers shall have the following duties:

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

Oregon

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

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

Virginia

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

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

So, What Now?

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

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

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

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

That leaves several unanswered questions.

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

What do you think? Leave a comment.

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What is Skiing? In New Hampshire, the definition does not include tubbing in 2004.

Definition of the New Hampshire Skier Safety Act in 2004 was not written broadly enough to include tubing.

Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Alaina Sweeney

Defendant: Ragged Mountain Ski Area, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: New Hampshire Skier Safety Act

Holding: Reversed and Remanded, sent back to trial for the Plaintiff

Year: 2004

Colorado’s ski area statute uses the term skier to describe anyone on the resort property. That means the term skier also includes snowboarders, telemark skiers, bike skiers, Nordic skier and tubers.

The plaintiff went tubing at the defendant’s tubbing hill. The hill was only for tubing and did not allow skiing on the tubing hill. No employees were present at the tubing hill when the plaintiff was tubing. While tubing she crossed from one lane to the other and collided with another tuber.

She sued, and the ski area argued to the trial court that the New Hampshire Ski Area Safety Act defined skier to include tubers. The trial court agreed and dismissed the complaint.

The plaintiff appealed.

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

The New Hampshire Ski Area Safety Act has been amended since this case to include in the definition of skier a snow tuber. At the time of this case, the definition of skier, which is what the controlled was defined “A “skier” is defined as “a person utilizing the ski area under the control of a ski area operator for the purpose of utilizing the ski slopes, trails, jumps or other areas.”

A court look or examining a statute cannot broaden the definitions in the statute unless the statute specifically grants the court that right. Although the courts are the final arbiter of a statute, the review is limited to what the legislature put into the statute.

We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent.

When a statute such as this one changes the common law, the statute must be interpreted strictly. The presumption in a law like this is the statute took away rights, not created or added additional ones. Here the statute created immunity for ski areas, taking away the common law right to sue so the statute was to be interpreted strictly.

Accordingly, then, immunity provisions barring the common law right to recover are to be strictly construed. We have often stated that we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent.

The court then looked at how ski slopes, trails, jumps or other areas were defined in the act to see if that included tubing hills. However, that definition was also specific and narrow.

Ski slopes, trails and areas” are further defined as “only those areas designated by the alpine or nordic ski operator on trail boards or maps . . . to be used by skiers for the purpose of participating in the sport of skiing.

Again, tubing was not part of the definition of the act. “Thus, a “skier” is limited to one who “participates in the sport of skiing,” and, as such, the statutory references to “skiers” necessarily inform our interpretation of the “sport of skiing.”

The court then went back and examined other parts of the New Hampshire Ski Safety Act to see if any part of the act could be used to provide protection to the ski area. The declaration, the first part of the statute detailing why the statute was created and the value of the statute to the state did not include a reference to tubing, only to skiing.

It shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.

The court found that based on the declaration, the purpose and focus of the statute was for alpine and Nordic ski area. Because the plaintiff was not utilizing an alpine or Nordic slope, the plaintiff was not a skier. As such there was no protection afforded by the New Hampshire Skier Safety Act because the act, at the time of the lawsuit, only protected ski areas from skiers.

The trial court dismissal was overthrown, and the case sent back to proceed to trial.

So Now What?

There is an old adage that says the law grinds slowly but grinds finely. Meaning the law works slowly but when it works to solve the problem. Here the New Hampshire Skier Safety Act was probably enacted prior to the interest in tubing. Many other states with skier safety statutes have broader definitions of a skier who in most cases includes tubing. In some cases, the definition of a skier is a person on the ski area for any purpose.

Here the act was written narrowly, the definitions were not broad enough to include tubing. Nor were the definitions able to be broadened because that power was not provided to the court by the legislature when it passed the act.

Of real interest is the idea that no employees were present on the tubing hill at the time of the accident. It does not say, but the tubing hill probably did not include a lift and people walked up hill pulling a tube.

Either way, if you are in doubt as to whether or not a statute may provide protection to you for the activity you are selling, you should use a release.

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Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

Alaina Sweeney v. Ragged Mountain Ski Area, Inc.

No. 2003-719

SUPREME COURT OF NEW HAMPSHIRE

151 N.H. 239; 855 A.2d 427; 2004 N.H. LEXIS 126

May 6, 2004, Argued

July 15, 2004, Opinion Issued

SUBSEQUENT HISTORY: [***1] Released for Publication July 15, 2004.

PRIOR HISTORY: Merrimack.

DISPOSITION: Reversed and remanded.

COUNSEL: Wiggin & Nourie, P.A., of Manchester (Peter E. Hutchins on the brief and orally), for the plaintiff.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief and orally), for the defendant.

JUDGES: GALWAY, J. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred.

OPINION BY: GALWAY

OPINION

[*240] [**428] GALWAY, J. The plaintiff, Alaina Sweeney, appeals an order of the Superior Court (Fitzgerald, J.) granting a motion to dismiss filed by the defendant, Ragged Mountain Ski Area, Inc. (Ragged Mountain). We reverse and remand.

The relevant facts follow. On March 21, 2001, the plaintiff went snow tubing at Ragged Mountain, which operates, among other things, snow tube runs. The snow tube area was designated only for snow tubing, and was not used for alpine or nordic skiing. When the plaintiff went snow tubing, no employees of Ragged Mountain were present to instruct her on the proper use of the snow tube. The plaintiff made a few “runs” down the snow tube trail. On [***2] her last run, she crossed the center line between snow tube lanes, [**429] continued down the adjacent lane, and ultimately collided with another snow tuber.

The plaintiff brought a negligence claim against Ragged Mountain for injuries sustained as a result of the collision. Ragged Mountain moved to dismiss, alleging that RSA 225-A:24, I (2000) barred recovery because it precludes claims brought by those injured in the “sport of skiing,” which, Ragged Mountain argued, includes snow tubing. The plaintiff argued that the statute does not apply to snow tubers. The court granted Ragged Mountain’s motion to dismiss.

On appeal, the plaintiff first argues that RSA 225-A:24, I, does not bar her claim because it does not apply to snow tubers. Because we agree, we need not address her other arguments.

The plaintiff contends that pursuant to RSA 225-A:24, I, ski area operators are granted immunity from liability only when claims are filed by those who participate in the “sport of skiing.” She argues that because snow tubing is not the “sport of skiing,” RSA 225-A:24, I, does not preclude her [***3] recovery. Ragged Mountain disagrees, arguing that the “sport of skiing” includes snow tubing.

[HN1] “In reviewing the trial court’s grant of a motion to dismiss, our task is to ascertain whether the allegations pleaded in the plaintiff’s writ are reasonably susceptible of a construction that would permit recovery.” Rayeski v. Gunstock Area, 146 N.H. 495, 496, 776 A.2d 1265 (2001) (quotation omitted). “We assume all facts pleaded in the plaintiff’s writ are true, and we construe all reasonable inferences drawn from those facts in the plaintiff’s favor.” Id. “We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law.” Id. (quotation omitted). If the facts fail to constitute a basis for legal relief, we will uphold the granting of [*241] the motion to dismiss. Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673, 674-75, 846 A.2d 521, 523 (2004).

The question before us is one of statutory interpretation-whether RSA 225-A:24, I, grants immunity to ski area operators against claims for injuries brought by snow tubers. [HN2] We are the final arbiter of the intent of the legislature as expressed in [***4] the words of the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515, 842 A.2d 77 (2004). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent. Id.

Furthermore, [HN3] “statutes in derogation of the common law are to be interpreted strictly.” 3 N. Singer, Sutherland Statutory Construction § 61:6, at 255 (6th ed. rev. 2001). While a statute may abolish a common law right, “there is a presumption that the legislature has no such purpose.” Id. § 61.1, at 222. If such a right is to be taken away, “it must be noted clearly by the legislature.” Id. at 222-23. Accordingly, then, immunity provisions barring the common law right to recover are to be strictly construed. We have often stated that we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent. See State v. Hermsdorf, 135 N.H. 360, 363, 605 A.2d 1045 (1992); see also Douglas v. Fulis, 138 N.H. 740, 742, 645 A.2d 76 (1994). [***5]

RSA 225-A:24, entitled, “Responsibilities of Skiers and Passengers,” states, in relevant part:

[HN4] It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing as [**430] a sport and the use of passenger tramways associated therewith may be hazardous to the skiers or passengers. Therefore:

I. Each person who participates in the sport of skiing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; . . . pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.

[*242] RSA 225-A:24, I (emphasis added). As we have previously [***6] held, RSA 225-A:24, I, [HN5] limits skiers’ recovery, thereby functioning as an immunity provision for ski area operators. See Nutbrown v. Mount Cranmore, 140 N.H. 675, 680-81, 671 A.2d 548 (1996). In enacting this provision, “the legislature intended to supersede and replace a skier’s common law remedies for risks inherent in the sport of skiing.” Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 7 (1st. Cir. 1991). The question we must answer today is whether that statute also replaces the plaintiff’s common law remedy. In answering this question, we need not precisely define the “sport of skiing,” nor list every activity encompassed within that phrase.

Because the phrase “sport of skiing,” is not specifically defined, we look to other provisions of the statutory scheme for guidance. [HN6] A “skier” is defined as “a person utilizing the ski area under the control of a ski area operator for the purpose of utilizing the ski slopes, trails, jumps or other areas.” RSA 225-A:2, II (2000). “Ski slopes, trails and areas” are further defined as “only those areas designated by the alpine or nordic ski operator [***7] on trail boards or maps . . . to be used by skiers for the purpose of participating in the sport of skiing.” RSA 225-A:2, IV (2000) (emphasis added). Thus, a “skier” is limited to one who “participates in the sport of skiing,” and, as such, the statutory references to “skiers” necessarily inform our interpretation of the “sport of skiing.”

We next look to the declaration of policy set forth at the beginning of the statutory scheme for guidance. See RSA 225-A:1 (2000). RSA 225-A:1 states, in part:

[HN7] It shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.

(Emphasis added.) This provision indicates that the focus of the statutory scheme is upon those who utilize alpine and nordic areas. It further indicates that [***8] alpine areas are those used for downhill activities, while nordic areas are those used for cross country activities and ski jumps. While utilizing the alpine and nordic areas may not be the sole, defining characteristic of a skier, the policy provision indicates that it is an essential characteristic nonetheless.

Here, the plaintiff was not utilizing an alpine or nordic slope. Rather, as the trial court found, she was utilizing a snow tube run designated [*243] exclusively for snow tubing. Accordingly, we do not believe [**431] she was a skier, or other user of alpine or nordic areas, and, therefore, we cannot conclude that she “participated in the sport of skiing” as intended by the legislature in RSA 225-A:24, I.

Although Ragged Mountain looks to the same statutory provisions we have referenced for support, we believe those provisions are consistent with our more narrow interpretation of RSA 225-A:24, I. [HN8] Nothing in those provisions clearly expresses a legislative intent to preclude a snow tuber, injured while sliding down a run used exclusively for snow tubing, from recovering for her injuries. See Hermsdorf, 135 N.H. at 363. [***9]

Ragged Mountain first relies upon the statutory definition of “skier,” RSA 225-A:2, II, to support its position. Given that the statute broadly defines “skier,” Ragged Mountain argues that the “sport of skiing” must be similarly broadly defined. We disagree. Ragged Mountain errs in reading the definition of “skier” in isolation. As explained above, [HN9] when that definition is read in conjunction with RSA 225-A:2, IV and RSA 225-A:1, it appears that a “skier” does not include a person snow tubing on a track designated solely for snow tubing. At the very least, we cannot conclude that the statute “clearly expresses” an intent to abrogate the common law right to recover of a snow tuber injured while using a track designated solely for snow tubing. Hermsdorf, 135 N.H. at 363.

Ragged Mountain also relies upon RSA 225-A:1, the policy provision prefacing the statutory scheme, to support its claim. It argues that because the policy provision of the statute “clearly encompasses more than traditional downhill skiing,” the “sport of skiing” must include snow tubing.

[HN10] To the extent [***10] that RSA 225-A:1 contemplates winter sports activities other than skiing, it is concerned only with winter sport activities that occur on alpine and nordic slopes. See RSA 225-A:1. The plaintiff in the instant case was not utilizing an alpine or nordic slope, but rather was injured while utilizing a snow tube on a track designated solely for snow tubing. Nothing in the policy provision, then, clearly expresses the legislative intent to extinguish the common law claims of snow tubers injured on a track designated solely for snow tubing.

Because Ragged Mountain cannot point to a statutory provision that clearly expresses a legislative intent to abrogate the plaintiff’s common law right to recover, we conclude that the plaintiff’s claim is not precluded by RSA 225-A:24, I. See Hermsdorf, 135 N.H. at 363. We reverse the trial court’s order granting Ragged Mountain’s motion to dismiss and remand [*244] for further proceedings consistent with this opinion. In light of our opinion, we need not address the plaintiff’s remaining arguments on appeal.

Reversed and remanded.

BRODERICK, C.J., and [***11] NADEAU, DALIANIS and DUGGAN, JJ., concurred.