States that do not Support the Use of a Release.

Assumption of the risk is your best defense in these states.

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

State

Citation

Issues/Article

Releases are Void
Louisiana C.C. Art. 2004 (2005) Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
Virginia Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890) Except for Equine Activities Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited
Oregon Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Use of a Release is Restricted
Arizona Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53
New Mexico Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48
P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25
State created Equine Liability Statute so no need for release
West Virginia Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;
1994 W. Va. LEXIS 161
Use of Releases is Probably Void
Connecticut Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006
Conn. LEXIS 330
Mississippi Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375 Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.
Wisconsin Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 Wisconsin decision has left the status of release law in Wisconsin in jeopardy
Wisconsin Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121 Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.
Vermont Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127
Specific uses of Releases are Void
Alaska Sec. 05.45.120(a). Use of liability releases A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.
Hawaii King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004) Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release
New York General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
Not Sure Where the Supreme Court Stands at This Time
Montana MCA § 27-1-701 Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.
However, Montana passed the Montana Recreation Responsibility Act which now allows the use of a release for Recreational activities. This Act has not been reviewed by the courts.
Utah Decisions for Releases
Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident

Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16

Decisions Against Releases

Utah Supreme Court Reverses long position on releases in a very short period of time

Utah seems to be adopting a position against releases. So far, they are invalidating releases if the legislature has created a statute protecting an activity.
However, they have had several decisions supporting releases. Good luck

What do you think? Leave a comment.

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States that do not Support the Use of a Release

The most changes in this form have occurred in the last year over the last ten years.

Assumption of the risk is your best defense in these states

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

State

Citation

Issues/Article

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

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

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

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

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Use of a Release is Restricted

Arizona

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

 

New Mexico

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

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

State created Equine Liability Statute so no need for release

West Virginia

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

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

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

Conn. LEXIS 330

 

Mississippi

Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.

Wisconsin

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

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Wisconsin

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Vermont

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

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

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

Hawaii

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

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

New York

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

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

 

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States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

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

State

Citation

Issues/Article

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

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

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

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

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Use of a Release is Restricted

Arizona

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

 

New Mexico

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

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

State created Equine Liability Statute so no need for release

West Virginia

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

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

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

Conn. LEXIS 330

 

Wisconsin

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

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Wisconsin

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Vermont

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

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

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

Hawaii

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

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

New York

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

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

 

What do you think? Leave a comment.

Copyright 2010 -2016 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

 

 

 


States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

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

State

Citation

Issues

Releases are Void

Louisiana

C.C. Art. 2004 (2005)

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

Montana

MCA § 27-1-701

Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.

Virginia

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

Except for Equine Activities Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Use of a Release is Restricted

Arizona

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

 

New Mexico

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

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

 

West Virginia

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

1994 W. Va. LEXIS 161

 

Use of Releases is Probably Void

Connecticut

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

Conn. LEXIS 330

 

Oregon

Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Wisconsin

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

Wisconsin decision has left the status of release law in Wisconsin in jeopardy

Vermont

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

 

Specific uses of Releases are Void

Alaska

Sec. 05.45.120(a).  Use of liability releases

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

Hawaii

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

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

New York

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

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

 

What do you think? Leave a comment.

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New Mexico interpretation of the New Mexico Ski Safety Act for injuries a beginner received leaving a ski lesson

I’m not sure why everyone needs to test skier safety acts. Here, the plaintiff admitted he could not ski, left the ski lesson and skied down the hill injuring him. So he sues the ski area?

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

Plaintiff: George Philippi

Defendants: Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation

Plaintiff Claims: negligence and violation of the New Mexico Ski Safety Act

Defendant Defenses: New Mexico Ski Safety Act and statutory assumption of the risk

Holding: for the defendants

This is a pretty simply case. The plaintiff is a body builder. He took a ski lesson from the defendants and was not good at skiing. He was unable to master turning or other maneuvers and fell repeatedly during the lesson. The plaintiff told his instructors to stop the lesson because he was frustrated and tired. Allegedly following the instructor’s suggestions he skied down the hill into a funnel where he fell and was injured his right leg and knee.

The plaintiff sued in Federal District Court, and his claims were dismissed based on a motion for summary judgment. He appealed to the Tenth Circuit Court of Appeals. New Mexico is part of the Tenth Circuit, one of the appellate courts in the federal system based in Colorado. Consequently, this court is familiar with skiing.

Summary of the case

The plaintiff argued two issues on his appeal. First, the lower court misconstrued and misapplied the doctrine of primary assumption of the risk as set forth in the New Mexico Ski Safety Act. His second argument was the act incorporates comparative negligence principles, and thus the act cannot act as a complete bar to his recovery.

The court looked at the first claim and held the New Mexico Ski Safety Act imposes no duty on part of the ski area to protect the plaintiff, a novice skier, from the “inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope.”

The New Mexico Ski Safety Act states that a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The skier assumes the risk of skiing and the legal responsibility of any injury to person or property from skiing. The act then lists the risks the skier assumes, as most acts do.

§ 24-15-10.  Duties of the skiers

B.  A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport, insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property, which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner, which may cause or contribute to the injury of anyone.

The plaintiff argued the risks he encountered were not obvious to him because he was a novice skier.

Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope.

The plaintiff argued the ski area had a duty to warn him of obstacles in the lower portion of the slope. The plaintiff argued the obstacles were not plainly visible to him as a novice skier and created hazards to him and the skiing public. The Act imposes an affirmative duty on ski areas to warn or “correct particular hazards or dangers known to the operator where feasible to do so.”

However, the court found that allegations alone are not enough to proceed with his argument. “The party resisting [summary judgment] may not rest on the bare allegations or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.”

However, allegations alone are not enough to sustain an argument and a motion for summary judgment. The plaintiff must have more. Here the court said he needed to identify particular hazards or dangers which the defendant knew about and failed to warn the plaintiff about.

The second issue was the statute incorporated the comparative negligence statute of New Mexico and therefore, could not act as a complete bar to the plaintiff. If you remember comparative negligence, it states that the defense of assumption of the risk is gone. Instead of a plaintiff assuming the risk and his claims being barred, the jury determines how much of the plaintiff’s acts caused his injuries and assigns a percentage of fault to the plaintiff and the defendant. If the defendant’s degree of fault is greater than the plaintiff’s that percentage of fault is applied to the total damages, and the plaintiff takes that percentage of the money as a judgment.

By arguing comparative negligence applies here; the plaintiff is arguing that his case must, by law be heard by a jury to apply the percentage of fault. However, the court found that the statute did not require the use of comparative negligence because the statute protected the ski area from liability. The plaintiff could still assume the risk of his injuries and thus be barred from suing.

So Now What?

The plaintiff argued that the ski area “ski instructor’s manual” failed to point out the need to warn students of dangers and alert them to safety issues. It is interesting to use a ski area manual to try an argument from the lack of a point to train in the ski area manuals.

This argument in the case is what caught my attention. In many cases, we write manuals to help instruct employees to work and keep our guests safe. Here, that information in the manual might have changed the outcome of this case.

If the point had been in the manual, then would the ski area been liable if they had not pointed out the “hazards” on the slope to the plaintiff?

However, you need to think about that issue. How big would a manual need to be to instruct your employees to point out the hazards of the sport or the slope? What about the hazards of any outdoor recreation program or business. Would you have to identify every root crossing a trail or all the branches that may hang low for your taller guests?

The New Mexico Ski Safety Act is well-written and specifically lists the risk a skier assumes. It does not require a balancing test, only one answer. Did the injury the plaintiff receives occur because of the risks the plaintiff assumed stated in the act? In this case, he did. Nor did the statute require the ski area to do any more than identify or correct those risks that could not be seen by a skier of average ability and skill.

For more on comparative negligence see You have to be prepared way before trial, and you have to win at trial, because judges are given wide discretion in controlling your chances on appeal and Sometimes you want too much, sometimes you are greedy: WI plaintiff’s lawyers are killing their income source.

What do you think? Leave a comment.

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

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Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

George Philippi, Plaintiff-Appellant, v. Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation, a New York corporation, Defendants-Appellees.

No. 91-2253

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

961 F.2d 1492; 1992 U.S. App. LEXIS 6973

April 17, 1992, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-90-1178-JC). D.C. Judge JOHN E. CONWAY

DISPOSITION: DENIED. AFFIRMED

COUNSEL: Submitted on the briefs.

Patrick A. Casey and David C. Ruyle, Patrick A. Casey, P.A., Santa Fe, New Mexico, for the Plaintiff-Appellant.

Joe L. McClaugherty and Cameron Peters, McClaugherty, Silver & Downs, P.C., Santa Fe, New Mexico, for the Defendants-Appellees.

JUDGES: Before MOORE, TACHA, and BRORBY, Circuit Judges.

OPINION BY: TACHA

OPINION

[*1493] TACHA, Circuit Judge.

Plaintiff, George Philippi, appeals a district court order granting summary judgment to the defendants. 1 Philippi argues that the district court erred in granting the defendants summary judgment on Philippi’s negligence action. Philippi also argues that two unresolved issues of New Mexico law may be determinative in this case and urges this court to certify these issues to the Supreme Court of the State of New Mexico. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

[**2] In January of 1984, Philippi suffered a physical injury during the course of a skiing lesson at Sipapu Ski Area in New Mexico. Philippi, a body builder, injured his right leg and knee while attempting to negotiate the “Lower Bambi” run at Sipapu. Philippi brought this action against the defendants claiming, among other things, that the defendants acted negligently in violation of the New Mexico Ski Safety Act, N.M. Stat. Ann. 24-15-1 to 24-15-14 (hereinafter referred to as “the Act” or “the Ski Safety Act”).

In their motion for summary judgment, the defendants argued that they were entitled to judgment as a matter of law because the Ski Safety Act is Philippi’s only remedy and because Philippi’s claim is barred by his statutory assumption of the risks of skiing and his own breaches of duty under the Act. As an alternative basis for summary judgment, the defendants argued that they did not breach any of their duties under the Act. Without stating the basis of its ruling, the district court found that the motion for summary judgment was “well taken and should be granted.”

Philippi raises two claims on appeal. First, he argues that the district court misconstrued and misapplied the doctrine [**3] of primary and secondary assumption of the risk, as embodied in the Ski Safety Act. Second, Philippi argues that even if his conduct constitutes secondary assumption of the risk, the Act embodies comparative negligence principles, and his conduct, therefore, cannot totally bar his recovery under the Act. Philippi urges us to certify both of these issues to the New Mexico Supreme Court.

Although the basis of the district court’s ruling is not evident, [HN1] “we may affirm the granting of summary judgment if any proper ground exists to support the district court’s ruling.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988). We find it unnecessary to reach the merits of Philippi’s arguments on appeal because both arguments presuppose that, but for the district court’s alleged errors in applying the doctrines of assumption of the risk and comparative negligence, the district court would have concluded that the defendants owed a duty to Philippi. Viewing the facts alleged in the complaint and in opposition [*1494] to the summary judgment motion in the light most favorable to Philippi, we hold as a matter of law that the defendants owed no duty to protect Philippi from the harm [**4] he allegedly sustained. Because Philippi cannot demonstrate a duty owed by the defendants, we find certification of the issues on appeal inappropriate, as these issues are not determinative of this action.

This case requires us to determine whether the Ski Safety Act imposes a duty on a ski area operator to warn, or in some way protect, a novice skier from the inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope. Philippi’s injury occurred during a skiing lesson. According to the amended complaint, Philippi fell repeatedly during the lesson and, despite the ski instructors’ demonstrations and instructions, he was unable to master turning and other skiing maneuvers. Philippi allegedly informed the instructors that he wanted to stop the lesson because he was frustrated and tired. The instructors encouraged Philippi to continue skiing to the end of the run because the remaining terrain was “relatively easy,” and there was “no place to stop or stand.” The complaint alleges that “following the instructions of one of the individual Defendants, Plaintiff entered onto a narrow, steep, ungroomed slope which required numerous turns to navigate. Plaintiff [**5] could not see obstacles on this slope until he was upon them and too late to avoid them. During this portion of the instruction Plaintiff fell and severely injured his right leg and knee. . . .”

[HN2] Under section 24-15-10(B) of the Ski Safety Act, a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The Act goes on to state that a skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing areas, including any injury caused by . . . variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees or other forms of forest growth or debris . . . .

[HN3] The Act specifically excludes from the scope of a skier’s assumption of risk “any injuries . . . resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 [of the Act].” Id.

Philippi maintains that even though he assumed the obvious and necessary risks associated with skiing, including any injury caused by variations in terrain, the risks he encountered were not “obvious and necessary” [**6] to him as a novice skier. The Act imposes an affirmative duty on ski area operators “to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Id. 24-15-7(I). Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope. Thus, Philippi alleges that under section 24-15-7(I) of the Act, the defendants had a duty to warn him of the obstacles of the lower portion of the ski slope — obstacles “which were not plainly visible and which created an immediate hazard to [Philippi] and the skiing public.”

In response to the defendants’ argument in support of summary judgment that the defendants owed no duty to Philippi, Philippi bore the burden of making a showing sufficient to establish the existence of the defendants’ duty. See High Plains Natural Gas v. Warren Petroleum Co., 875 F.2d 284, 290-91 (10th Cir. 1989). [HN4] “The party resisting [summary judgment] may not rest on the bare allegations [**7] or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.” Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989).

Philippi claims that the deposition testimony and affidavits, along with facts alleged in his complaint, demonstrate a genuine issue of material fact concerning the defendants’ violation of section 24-15-7(I) of the Act. Philippi points out that, despite the instructors’ awareness of Philippi’s inability [*1495] to master even the simplest skiing maneuvers, the instructors “failed to help” and “failed to warn” Philippi of the risks of the lower portion of the Bambi trail. Further, Philippi made some showing that the defendants were aware that novice skiers had “problems” on the portion of the trail on which Philippi’s injury occurred. In addition, Philippi points to the failure of the Sipapu ski instructor’s manual to advise the instructors of the need to warn students of dangers and alert them to safety considerations. Philippi argues that reasonable minds could differ on whether these circumstances give rise to a duty on behalf of the defendants and, therefore, that the issue should [**8] be left to the finder of fact.

[HN5] Under New Mexico law, however, the question of whether a defendant owes a duty to a particular plaintiff is a question of law to be determined by the court. Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 (N.M. 1990); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 729 (N.M. 1984). Under section 24-15-7(I) of the Ski Safety Act, the defendants only have the duty to warn of or correct “particular hazards or dangers.” Philippi cannot rest on the bare allegation in his amended complaint that the defendants were aware of and failed to warn of “particular hazards or dangers.” Nothing in Philippi’s amended complaint, deposition or affidavits identifies any “particular hazard or danger” known to the defendants. Philippi merely asserts that his injury was caused by the defendants’ failure to warn him individually of the general conditions of the terrain on the lower portion of the beginner slope. Allegations of “thin and bare” terrain on a “narrow, steep and ungroomed” slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi. Likewise, allegations of the defendants’ knowledge of injuries [**9] to novice skiers on that same portion of the slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi.

The purpose of the Ski Safety Act is to define “those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes and for which there can be no recovery.” N.M. Stat. Ann. 24-15-2. Philippi assumed the risk for variations in terrain, id. 24-15-10, and Philippi had the duty to ski within the limits of his own ability. Id. Section 24-15-13 of the Act clearly states that a skier cannot recover for injuries or damages resulting from the skier’s own violation of his duties, as set forth in section 24-15-10. In our view, the Act allocates to the skier the risks for the type of injury Philippi alleges. In light of the language and purpose of the New Mexico Ski Safety Act, we conclude as a matter of law that [HN6] the scope of the duty imposed on ski operators in section 24-15-7(I) of the Act is not broad enough to encompass the duty to provide a general warning to a novice skier that, because of the skier’s limited abilities, portions of a beginner [**10] slope may be dangerous.

The motion to certify questions of state law is DENIED and the order of the district court is AFFIRMED.

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Skier claims resort liable for boundary rope, in place to prevent collisions, which she collided with…..

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Black and Yellow line (bumblebee) held up with bamboo poles with orange fluorescent flagging is hard to see

The plaintiff in this case suffered a broken back, ribs, hip and pelvis after hitting a rope used to direct traffic at Taos Ski Valley, Inc (referred to as TSV by the court). The plaintiff was an experienced skier, and the rope had been in place for twelve years.

The plaintiff sued for:

…failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles; TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages; TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary; and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV….

Taos moved to dismiss three of the claims with a motion based on a failure to state a claim. That is a motion that argues based on the allegations of the plaintiff’s complaint, there is no legal liability on the part of the defendants. The plaintiff has failed to state a legal claim that the defendant can be held liable for. Two of those claims were dismissed.

The ski area then filed a motion for summary judgment, which dismissed the remaining claims of the plaintiff based on the New Mexico Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq.

So?

The plaintiff appealed the dismissal of her case. The first basis of her appeal was based on the NM Ski Safety Act. The act provides that:

…every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so….

She argued that the installation of the rope created a hazard which the ski area did not warn her about.

The court agreed with the ski area and held that even if the rope was a hazard, it was not feasible to correct the hazard and thus, under the statute, not a hazard the ski area needed to warn the plaintiff about.

The plaintiff then argued the ski area breached its duty because it did not mark its trails with the appropriate signage.

Section 24-15-7(C) provides:

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

* * *  

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .

The plaintiff’s expert witness opined that three ropes would be better and easier to see. However, the court found the expert’s opinion to be speculation and not persuasive. (Personally, three ropes create a real barrier. Think skiing into a fence rather than one line.)

The plaintiff’s next argument procedural in nature. Normally, I leave procedural issues out of this reviews, however this one might be good to know. The plaintiff wanted to depose the resort’s Chief Groomer and the Assistant head of the Ski Patrol. The resort filed a motion for a protective order which prevented the plaintiff from deposing these employees.

The appellate court held that since one of the senior employees of the resort was the responsible person, to who both subordinate employees ultimately reported, there was no need to depose the two employees. The Ski Area General Manager testified that he had the ultimate responsibility for marking the resort, which was enough for the court to prevent additional discovery.

The final issue not covered by the New Mexico Ski Safety Act is the plaintiff’s claim that based on the Special Use Permit issued by the US Forest Service to the ski area, she was a third party beneficiary, and permit/contract was breached.

This argument was rejected because the language of the New Mexico Ski Safety Act language indicated that the provisions within the act were to be the only remedy available to injured skiers.

The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].

As the sole remedy, the arguments of the plaintiff did not give rise to a claim.

So Now What?

This is a classic “damned if you do and damned if you don’t” situation for a defendant. If you don’t put up the rope, skiers are going to collide, causing injuries. If you do put up the rope, a skier may hit the rope. This is the balance test that a business must do in the US. To quote a sixties TV show turned into a 1980’s movie “In any case, were I to invoke logic, logic clearly dictates that the needs of the many outweigh the needs of the few.”

What do you think? Leave a comment.

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Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

Becky J. Kidd, Plaintiff-Appellant, v. Taos Ski Valley, Inc., Defendant-Appellee.

No. 95-2066

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

88 F.3d 848; 1996 U.S. App. LEXIS 16060; 34 Fed. R. Serv. 3d (Callaghan) 1440

July 5, 1996, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (CIV-93-327-JC).

DISPOSITION: AFFIRMED.

COUNSEL: Grant Marylander (Jim Leventhal and Natalie Brown, of Leventhal & Bogue, Denver, Colorado, and Marion J. Craig, III, Roswell, New Mexico, with him on the briefs) of Leventhal & Bogue, Denver, Colorado, for Plaintiff-Appellant.

Joe L. McClaugherty (Jere K. Smith with him on the brief), Santa Fe, New Mexico, for Defendant-Appellee.

JUDGES: Before BRORBY, BARRETT, and LIVELY, * Circuit Judges.

* The Honorable Pierce Lively, Senior Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.

OPINION BY: BARRETT

OPINION

[*850] BARRETT, Senior Circuit Judge.

Becky J. Kidd (Kidd) appeals from a memorandum opinion and order granting Taos Ski Valley, Inc. (TSV) summary judgment and dismissing her complaint with prejudice.

Kidd suffered a broken back, ribs, hip, and pelvis in a skiing accident at TSV. “Her injuries were possibly received when she crossed a diversionary rope located on an area permanently marked as a slow skiing area by a huge orange banner.” (Appellant’s Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445). “The black and [**2] yellow rope, held up by bamboo poles and marked with strips of orange fluorescent flagging, was intended to close off a portion of the mountain to prevent collisions between skiers returning to the base from different sides of the mountain.” Id. “Plaintiff, an experienced TSV skier, never saw the rope closure.” Id. at 445-46.

Kidd filed a complaint in which she alleged, inter alia, that: TSV, in installing the diversionary rope, had breached its obligations under New Mexico’s Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq. (the Act), by failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles (Count I); TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages (Count II); TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary (Count III); and TSV’s installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV (Count IV).

TSV moved to dismiss Counts II, III, and IV for failure to state a claim [**3] upon which [*851] relief could be granted. The district court denied TSV’s motion to dismiss Kidd’s Count II punitive damage claim, concluding that although the Act was silent on the availability of punitive damages, general New Mexico law principles allowed for the recovery of punitive damages in limited circumstances, including conduct committed with a wanton disregard of a plaintiff’s rights. The district court did, however, grant TSV’s motion to dismiss Counts III and IV, Kidd’s third party beneficiary and inherently dangerous condition claims.

In dismissing Count III, the district court concluded that the “language of the statute indicates that the legislature intended the Act as the sole remedy for skiers” and that New Mexico case law “provides persuasive authority indicating that the state courts would reject Plaintiff’s theory of liability based on a third party beneficiary cause of action.” (Appellant’s Appendix, Vol. I at 73-74). In dismissing Count IV, the district court concluded that the inherently dangerous activity doctrine “is inconsistent with the Act because it would permit the imposition of additional duties on ski operators” and that the “Act was intended to limit the [**4] duties which can be imposed upon ski area operators [and] therefore forecloses the application of the” doctrine. Id. at 75-76. Kidd’s subsequent motion for reconsideration of the dismissal of Count III was denied.

Thereafter, TSV moved for summary judgment on Kidd’s remaining claims and Kidd moved for partial summary judgment on the issue of TSV’s negligence. Following briefing, the district court entered a memorandum opinion and order granting TSV summary judgment and dismissing Kidd’s complaint with prejudice. In so doing, the district court found that: although TSV offered convincing evidence that Kidd breached her duty to ski safely, Kidd’s testimony that she was not skiing out of control created a genuine issue of material fact making summary judgment improper, (Appellant’s Appendix, Vol. II at 447); Kidd failed to produce competent evidence from which a reasonable juror could conclude that the rope closure was not in accordance with industry usage and National Ski Area Association (NSAA) standards, id. at 449; and, no reasonable juror could conclude that the closure itself created a hazard under the Act requiring TSV to warn skiers of its presence. Id. at 451.

[**5] On appeal, Kidd contends that the district court erred when it granted TSV’s motion for summary judgment, barred her from obtaining critical discovery, and dismissed her third party beneficiary claim.

I.

Kidd contends that the district court erred when it granted summary judgment in favor of TSV. Kidd argues that summary judgment was erroneous because she presented substantial evidence that TSV breached its duties under §§ 24-15-7(I) and (C) of the Act.

[HN1] We review a district court’s grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Lancaster v. Air Line Pilots Ass’n Int’l., 76 F.3d 1509, 1516 (10th Cir. 1996). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Hagelin for President Comm. of Kan. v. Graves, 25 F.3d 956, 959 (10th Cir. 1994), cert. denied, U.S. , 115 S. Ct. 934, 130 L. Ed. 2d 880 (1995). When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the non-moving/opposing party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). [**6]

a.

Kidd asserts that summary judgment was inappropriate because there was substantial evidence that TSV breached its duty under § 24-15-7(I) of the Act. This section provides that ” [HN2] every ski area operator shall have the following duties with respect to the operation of a skiing area: . . . to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Kidd argues that TSV breached this duty when it installed the single strand diversionary rope and blocked off an otherwise skiable [*852] area without giving the skier sufficient warning. The district court rejected these arguments, concluding that:

The evidence submitted by the parties in this case demonstrates as a matter of law that the TSV rope closure, by virtue of its location and purpose, cannot qualify as a hazard under the Act. The rope is located in a well-marked slow skiing zone near the base of the mountain. The closure serves to prevent, not cause, collisions between skiers returning to the base area. Moreover, the undisputed evidence shows that the rope has been in place since 1978, and [over one] million skiers have managed to ski past it without injury.

(Appellant’s Appendix, [**7] Vol. II at 447).

Kidd maintains that this conclusion was erroneous and that summary judgment improper when, as here: TSV’s expert acknowledged that a rope between two poles on a ski slope could be a hazard if a skier did not have time to react to the rope or could not see it. (Appellant’s Appendix, Vol. II at 333); the evidence was undisputed that Kidd, an experienced TSV skier did not see the rope, id. at 445-46; Kidd presented the testimony of another skier who stated that the “rope was not reasonably visible” and that “in skiing down the slope to Becky J. Kidd I did not see the rope,” id. at 309; and photographs taken immediately after the accident demonstrated the rope’s lack of visibility against the white background.

TSV responds that summary judgment was proper based on the undisputed evidence that the area of Kidd’s accident had been marked off and closed to skiing for at least twelve years without incident and its expert’s testimony that the rope did not create a hazardous situation and that the rope complied with the Act. TSV also maintains that a ski area operator’s duty to warn of or correct particular hazards or dangers under § 24-15-7(I) is limited to those [**8] hazards or dangers which are known to the operator and that Kidd failed to present any evidence that TSV knew that the rope closure was a hazard.

[HN3] Although the determination of “whether a duty [under the Act] has been breached is a question of fact,” Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648, 655 (N.M. Ct. App.), cert. denied, 113 N.M. 815, 833 P.2d 1181 (1992), the determination of “whether a duty exists is generally a question of law for the court to determine.” Id. As a matter of law, the duty imposed on ski area operators by § 24-15-7(I) “is limited to situations where the particular hazard is both known to the ski area operator and warning of or correcting the particular hazard is feasible.” Id. at 656 (emphasis original).

Applying Lopez, we hold that the district court did not err in granting TSV summary judgment on Kidd’s § 24-15-7(I) claim. Kidd failed to present any probative evidence that the diversionary rope in question was a “particular hazard . . . known to” TSV. On the contrary, the undisputed evidence was that the rope had been in place since 1978 and over one million skiers had managed to ski past it without injury. Therefore, TSV was entitled [**9] to judgment on this claim as a matter of law.

b.

Kidd reasons that she presented substantial evidence that TSV breached its duty under § 24-15-7(C) of the act making summary judgment on this claim improper.

[HN4] Section 24-15-7(C) provides:

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

* * *

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty; and those slopes, trails or areas marked at the top or entrance with the appropriate symbols as established or approved by the national ski area association . . . .

(Emphasis added).

Kidd asserts that she presented evidence which created a triable issue on whether TSV breached its duty under § 24-15-7(C) to comply with NSAA standards when it installed a single strand diversionary rope rather than multiple ropes or other barriers. Kidd [*853] argues that the evidence included the fact that although the NSAA had no written standards for marking closures, industry practice dictated the proper use of ropes for closures; TSV’s expert on NSAA standards stated that rope closures should be [**10] as visible as possible, that multiple ropes create a more effective barrier than single ropes, and that unless there are indications to the contrary, three rope barriers should be used rather than a single rope (Appellant’s Appendix, Vol. II at 335, 340 and 343); and there was nothing to prevent TSV from using multiple ropes. Kidd maintains that this evidence created a triable issue on whether TSV complied with NSAA standards making summary judgment on this claim improper.

TSV responds that: the only issue is whether the rope closure at issue complied with NSAA standards; Kidd is attempting to divert the inquiry away from whether TSV complied with NSAA standards by focusing on what TSV could have done rather than on what it did; and its expert testimony established, without exception, that the rope closure complied with NSAA standards.

We agree with the district court’s findings that Kidd produced “only speculation, not expert testimony . . . in attempting to rebut Defendant’s submitted compliance with the Act” and that “the record [is] absent of competent evidence that the closure fell outside industry norms established by NSAA standards.” (Appellant’s Appendix, Vol. II at 450). [**11] Kidd failed to meet her burden as a nonmoving party of producing specific facts “by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves” to avoid TSV’s properly supported summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Her conclusory allegations are not sufficient to defeat TSV’s motion. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995).

II.

Kidd contends that the district court erred when it barred her from obtaining critical discovery relevant to issues raised in the summary judgment proceedings. Kidd maintains that the district court abused its discretion when it prevented her from deposing TSV employees and from designating a visual acuity expert.

a.

Kidd states that the district court abused its discretion when it prevented her from deposing TSV employees concerning the hazardous nature of the rope. [HN5] Under Fed. R.Civ. P. 26(c), the district court may limit or bar discovery. The decision of a district court to enter a protective order under Rule 26(c) is reviewed for an abuse of discretion. Boughton v. Cotter Corp., 65 F.3d 823, 828 (10th Cir. 1995). Under this standard, “we [**12] will not disturb a trial court’s decision absent ‘a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.'” Thomas v. International Business Machs., 48 F.3d 478, 482 (10th Cir. 1995)(citations omitted).

Senior TSV employees testified that patrol members had been trained concerning the use of markings and compliance with both TSV and the Act’s standards. They also testified that patrol members were instructed to insure that markings were visible. When Kidd attempted to depose ski patrol members on their training and whether the rope in question was appropriately marked, TSV filed a motion for a protective order.

Following a hearing, the magistrate judge entered a discovery order granting TSV’s motion “to the extent Defendant seeks to bar the deposition of the Chief Groomer and the Assistant Head of the Ski Patrol at this time, based upon the court’s finding that subordinate employees should not be deposed to the extent the same information may be obtained from supervisors.” (Appellant’s Appendix, Vol. I at 109).

Kidd objected to the magistrate’s order. Thereafter, the district court [**13] entered a memorandum opinion overruling Kidd’s objections, finding, inter alia:

Plaintiff next objects to Magistrate Judge Svet’s limitation of questioning as to certain non-supervisory employees. The court has reviewed the deposition testimony provided by both the Plaintiff and Defendant [*854] and fails to identify the inconsistencies claimed by the Plaintiff. In fact, Plaintiff’s assertions misstate the evidence. The clear import of all of the depositions is that the supervisory [personnel] are ultimately responsible for the marking of the trails, and that the non-supervisory patrol members have little if any discretion in deciding how trails and hazards are to be marked.

(Appellant’s Appendix at 442B-42C).

We agree. Michael Blake, TSV’s General Manager, testified that he had the “ultimate responsibility” for properly marking TSV. (Appellant’s Appendix, Vol. II at 285). Under these circumstances, we hold that the district court did not abuse its discretion in overruling Kidd’s objections to the magistrate judge’s order.

b.

Kidd declares that the district court abused its discretion when it prevented her from designating a visual acuity expert. The decision to allow [**14] the testimony of an expert not described or listed in the pretrial order rests with the sound discretion of the district court and will not be disturbed absent an abuse of discretion. F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1556 (10th Cir. 1994).

In the initial pre-trial report, Kidd agreed to identify her liability expert witnesses by September 15, 1993. Kidd did not identify any liability expert witnesses by that date. However, Kidd retained additional counsel on January 15, 1994. On January 21, 1994, Kidd’s additional counsel filed a motion to add Freeman Hall, a visual acuity specialist and engineer, as an expert witness. The magistrate judge denied Kidd’s motion.

Following a review of Kidd’s objections to the magistrate judge’s order, the district court entered a memorandum opinion overruling Kidd’s objections, stating:

Plaintiff . . . objects to the Magistrate Judge’s refusal to permit the endorsement of an expert witness . . . . Plaintiff had sought to add an additional expert witness over four months after the deadline for designating experts had passed. Plaintiff has provided no reason for her delay, and the court can find no reason other than the recent addition [**15] of new counsel for the Plaintiff. The court therefore finds that Magistrate Judge Svet’s order denying the addition of the expert . . . is not clearly erroneous or contrary to law.

(Appellant’s Appendix at 442B).

Kidd asserts that the district court abused its discretion when it prevented her from designating a visual acuity expert who would have testified that the rope in question was not visible when, as here: the trial date had not been set; TSV would not have been prejudiced; she had been diligent, with the exception of designating the expert, in conducting her discovery; she did not appreciate the need for a visual acuity expert until she retained additional counsel; and a visual acuity expert was a critical expert who would explain to the jury what factors affected the rope’s visibility and why it could not be seen by skiers.

We hold that the district court did not abuse its discretion in refusing to allow Kidd to designate a visual acuity expert. Kidd’s request to designate an expert was made more than four months after the time period for designating such experts had lapsed. Moreover, Kidd provided no reason for her delay, save to allege that she was not aware of [**16] the need for such an expert until after she had retained additional counsel and that the expert would explain why the rope could not be seen by skiers. Neither of these assertions are sufficient to support Kidd’s claim that the district court abused its discretion, particularly in that it was undisputed that Kidd, “an experienced TSV skier, never saw the rope closure.” (Appellant’s Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445).

III.

Kidd contends that the district court erred when it dismissed her third party beneficiary claim. [HN6] We review de novo the district court’s dismissal for failure to state a claim. Seymour v. Thornton, 79 F.3d 980, 984 (10th Cir. 1996).

In Count III, Kidd alleged, inter allia:

[*855] Under the terms of the Permit between the United States and the Defendant, Defendant is to conduct the operations of the ski area, with full recognition of the need of public safety, 1 and is to regularly inspect the ski area and correct any hazardous conditions.

1 Section “24. Safety” of the Special Use Permit between TSV and the Forest Service provided in part:

The permittee [TSV] shall conduct the operations authorized by this permit with full recognition of the need for public safety. In furtherance of this requirement, the permittee shall prepare a safety plan designed to provide adequate safety to the users of the permitted area and facilities. The plan shall have written approval of the Forest Supervisor prior to the operation of the facilities for public-use purposes. The plan shall include, but shall not be limited to, avalanche prevention and control; amount and kind of rescue equipment; conditioning of trails; and frequency of permittee inspection of area, equipment, machinery, and uphill facilities.

(Appellant’s Appendix, Vol. I at 37).

[**17] The Defendant’s maintaining and permitting the use of an unmarked Rope in the middle of the ski area constituted a breach of this lease term.

The United States . . . in granting the Defendant a right to use [its] property, required that the operation be conducted with full recognition for the need of public safety. The people of the United States, including the Plaintiff, are third-party beneficiaries of the provisions the Lease Agreement between the United States and the Defendant. The Defendant’s operation of the ski area, in violation of the needs for “Public Safety”, constitute a breach of the Agreement. Plaintiff, was a third-party beneficiary of this Lease Contract, had the right to expect the contract to be performed and therefore should be allowed to recover her damages caused by Defendant’s breach.

(Appellant’s Appendix at 5). (Emphasis added).

In dismissing Count III, the district court concluded:

The question before the court is whether the Act provides the exclusive remedy available to the Plaintiff.

* * *

The language of the statute indicates that the legislature intended the Act as the sole remedy for skiers. The Act states that ‘unless a ski operator [**18] is in violation of the Ski Safety Act, with respect to the skiing area . . ., and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area, operator by any skier [or his representative].” . . . [HN7] Under New Mexico law when the meaning of a statute is plain, it must be given effect, and there is no room for construction . . . . Here, the language of the Act is clear and unambiguous, stating that no action shall lie against a ski area operator unless the operator violates the Act and that violation is the proximate cause of the skier’s injury.

The precise question of whether a ski operator is liable to a plaintiff as a third party beneficiary has not been addressed by any appellate court in New Mexico. In Wood v. Angel Fire Ski Corp., 108 N.M. 453, 455, 774 P.2d 447 (Ct.App. 1989), the New Mexico Court of Appeals held that the Act ‘limited in part the tort liability of ski operators.’ Later, in Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648 (Ct.App. 1992), the plaintiff sued for tort damages resulting from personal injury. Again, the Court of Appeals held that the ‘provisions of the Act were intended by the legislature to exclusively control each [**19] of plaintiff’s claims herein.’

From the above cases, it is clear that [HN8] the Act is the sole remedy for an action based in tort. In regards to a contract claim, however, the above cases provide only dicta. Yet, these opinions provide persuasive authority indicating that the state courts would reject the Plaintiff’s theory of liability based on a third party beneficiary cause of action. Since the clear language of the Act must be given its plain effect, this Court concludes that a state court hearing this issue would reject the third party beneficiary theory contained in Count III.

(Appellant’s Appendix, Vol. I at 73-74).

We agree with the district court that New Mexico case law provides “persuasive authority [*856] indicating that the state courts would reject Kidd’s theory of liability based on a third party beneficiary cause of action.”

AFFIRMED.

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New Mexico Skier Safety Act

New Mexico Skier Safety Act

Chapter 24.  Health and Safety

Article 15.  Ski Safety

Go to the New Mexico Code Archive Directory

Contents

§ 24-15-1.  Short title. 1

§ 24-15-2.  Purpose of act1

§ 24-15-3.  Definitions. 2

§ 24-15-4.  Insurance. 2

§ 24-15-5.  Penalty. 3

§ 24-15-6.  Provisions in lieu of others. 4

§ 24-15-7.  Duties of ski area operators with respect to skiing areas. 4

§ 24-15-8.  Duties of ski area operators with respect to ski lifts. 5

§ 24-15-9.  Duties of passengers. 5

§ 24-15-10.  Duties of the skiers. 5

§ 24-15-11.  Liability of ski area operators. 7

§ 24-15-12.  Liability of passengers. 7

§ 24-15-13.  Liability of skiers. 7

§ 24-15-14.  Limitation of actions; notice of claim.. 7

§ 24-15-1.  Short title

Chapter 24, Article 15 NMSA 1978 may be cited as the “Ski Safety Act”.

§ 24-15-2.  Purpose of act

A. In order to safeguard life, health, property and the welfare of this state, it is the policy of New Mexico to protect its citizens and visitors from unnecessary hazards in the operation of ski lifts and passenger aerial tramways and to require liability insurance to be carried by operators of ski lifts and tramways. The primary responsibility for the safety of operation, maintenance, repair and inspection of ski lifts and tramways rests with the operators of such devices. The primary responsibility for the safety of the individual skier while engaging in the sport of skiing rests with the skier himself. The state, through the Ski Safety Act [24-15-1 NMSA 1978], recognizes these responsibilities and duties on the part of the ski area operator and the skier.

B. It is recognized that there are inherent risks in the sport of skiing, which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator. It is the purpose of the Ski Safety Act [24-15-1 NMSA 1978] to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier or passenger expressly assumes and for which there can be no recovery.

§ 24-15-3.  Definitions

As used in the Ski Safety Act [24-15-1 NMSA 1978]:

A.  “ski lift” means any device operated by a ski area operator used to transport passengers by single or double reversible tramway, chair lift or gondola lift, T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow;

B.  “passenger” means any person, at any time in the year, who is lawfully using a ski lift or is waiting to embark or has recently disembarked from a ski lift and is in its immediate vicinity;

C.  “ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state;

D.  “ski area operator” means any person, partnership, corporation or other commercial entity and its agents, officers, employees or representatives who has operational responsibility for any ski area or ski lift;

E.  “skiing” means participating in the sport in which a person slides on snow, ice or a combination of snow and ice while using skis;

F.   “skiing area” means all slopes, trails, terrain parks and competition areas, not including any ski lift;

G.  “skier” means any person, including a person enrolled in ski school or other class for instruction, who is on skis and present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include a passenger;

H.  “ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing;

I.    “ski retention device” means a device designed to help prevent runaway skis; and

J.   “skis” means any device used for skiing, including alpine skis, telemark skis, cross-country skis, mono-skis, snowboards, bladerunners, adaptive devices used by disabled skiers, or tubes, sleds or any other device used to accomplish the same or a similar purpose to participate in the sport of skiing.

§ 24-15-4.  Insurance

A. Every operator shall file with the state corporation commission [public regulation commission] and keep on file therewith proof of financial responsibility in the form of a current insurance policy in a form approved by the commission, issued by an insurance company authorized to do business in the state, conditioned to pay, within the limits of liability herein prescribed, all final judgments for personal injury or property damage proximately caused or resulting from negligence of the operator covered thereby, as such negligence is defined and limited by the Ski Safety Act [24-15-1 NMSA 1978]. The minimum limits of liability insurance to be provided by operators shall be as follows:

SKI SAFETY ACT

Liability insurance

Limits of Liability

Required Minimum Coverage’s

For Injuries, Death or Damages

Kind and Number of Lifts Operated

Limits for Bodily Injury to or Death of Property One Person Damage

Limits for Bodily Injury to or Death of All Persons Injured or Killed in Any One Accident

Property Damage

Not more than three surface lifts

$ 100,000

$ 300,000

$ 5,000

Not more than three ski lifts, including one or more chair lifts

250,000

500,000

25,000

More than three ski lifts or one or more tramways

500,000

1,000,000

50,000.

B. No ski lift or tramway shall be operated in this state after the effective date of the Ski Safety Act [24-15-1 NMSA 1978] unless a current insurance policy as required herein is in effect and properly filed with the state corporation commission [public regulation commission]. Each policy shall contain a provision that it cannot be canceled prior to its expiration date without thirty days’ written notice of intent to cancel served by registered mail on the insured and on the commission.

§ 24-15-5.  Penalty

Any operator convicted of operating a ski lift or aerial passenger tramway without having obtained and kept in force an insurance policy as required by the Ski Safety Act [24-15-1 NMSA 1978] is guilty of a misdemeanor punishable by a fine of not more than five hundred dollars ($ 500) for each day of illegal operation. The attorney general or the district attorney of the county where the ski area is located has the power to bring proceedings in the district court of the county in which the ski area is located to enjoin the operation of any ski lift or tramway being operated without a current insurance policy, in the amounts prescribed herein, being obtained and kept in force and covering the operator concerned.

§ 24-15-6.  Provisions in lieu of others

Provisions of the Ski Safety Act [24-15-1 NMSA 1978] are in lieu of all other regulations, registration or licensing requirements for ski areas, ski lifts and tramways. Ski lifts and tramways shall not be construed to be common carriers within the meaning of the laws of New Mexico.

§ 24-15-7.  Duties of ski area operators with respect to skiing areas

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

A.  to mark all snow-maintenance vehicles and to furnish such vehicles with flashing or rotating lights, which shall be in operation whenever the vehicles are working or are in movement in the skiing area;

B.  to mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snow-making operations and located on ski slopes and trails;

C.  to mark in a plainly visible manner the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of difficulty, using the symbols established or approved by the national ski areas association; and those slopes, trails or areas which are closed, or portions of which present an unusual obstacle or hazard, shall be marked at the top or entrance or at the point of the obstacle or hazard with the appropriate symbols as are established or approved by the national ski areas association or by the New Mexico ski area operators association;

D.  to maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated in accordance with the symbols and containing a key to the symbols;

E.  to designate by trail board or otherwise at the top of or entrance to the subject trail or slope which trails or slopes are open or closed;

F.   to place or cause to be placed, whenever snow-maintenance vehicles or snow-making operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top or entrance of such trail or slope;

G.  to provide ski patrol personnel trained in first aid, which training meets at least the requirements of the national ski patrol outdoor emergency care course, and also trained in winter rescue and toboggan handling to serve the anticipated number of injured skiers and to provide personnel trained for the evacuation of passengers from stalled aerial ski lifts. A first aid room or building shall be provided with adequate first aid supplies, and properly equipped rescue toboggans shall be made available at all reasonable times at the top of ski slopes and trails to transport injured skiers from the ski slopes and trails to the first aid room;

H.  to post notice of the requirements of the Ski Safety Act [24-15-1 NMSA 1978] concerning the use of ski retention devices;

I.    to warn of or correct particular hazards or dangers known to the operator where feasible to do so; and

J.   to warn of snowmobiles or all-terrain vehicles (ATV’s) operated on the ski slopes or trails with at least one lighted headlamp, one lighted red tail lamp, a brake system and a fluorescent flag that is at least forty square inches and is mounted at least six feet above the bottom of the tracks or tires.

§ 24-15-8.  Duties of ski area operators with respect to ski lifts

Every ski area operator shall have the duty to operate, repair and maintain all ski lifts in safe condition. The ski area operator, prior to December 1 of each year, shall certify to the state corporation commission [public regulation commission] the policy number and name of the company providing liability insurance for the ski area and the date of the ski lift inspections and the name of the person making such inspections.

§ 24-15-9.  Duties of passengers

Every passenger shall have the duty to conduct himself carefully and not to:

A.  board or embark upon or disembark from a ski lift except at an area designated for such purpose;

B.  drop, throw or expel any object from a ski lift;

C.  do any act which shall interfere with the running or operation of a ski lift;

D.  use any ski lift unless the passenger has the ability to use it safely without any instruction on its use by the ski area operator or requests and receives instruction before boarding the ski lift;

E.  willfully or negligently engage in any type of conduct which contributes to or causes injury to any person;

F.   embark on a ski lift without the authority of the ski area operator;

G.  use any ski lift without engaging such safety or restraining devices as may be provided; or

H.  wear skis without properly securing ski retention devices; or

I.    use a ski lift while intoxicated or under the influence of any controlled substance.

§ 24-15-10.  Duties of the skiers

A. It is recognized that skiing as a recreational sport is inherently hazardous to skiers, and it is the duty of each skier to conduct himself carefully.

B.  A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.

C.  Responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of each individual involved in the collision, except where an employee, agent or officer of the ski area operator is personally involved in a collision while in the course and scope of his employment or where a collision resulted from any breach of duty imposed upon a ski area operator under the provisions of Sections 24-15-7 or 24-15-8 NMSA 1978. Each skier has the duty to stay clear of and avoid collisions with snow-maintenance equipment, all-terrain vehicles and snowmobiles marked in compliance with the provisions of Subsections A and J of Section 24-15-7 NMSA 1978, all other vehicles, lift towers, signs and any other structures, amenities or equipment on the ski slopes and trails or in the skiing area.

D.  No person shall:

(1)place any object in the skiing area or on the uphill track of any ski lift which may cause a passenger or skier to fall;

(2)cross the track of any T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow, except at a designated location;

(3)when injured while skiing or using a ski lift or, while skiing, when involved in a collision with any skier or object in which an injury results, leave the ski area before giving his name and current address to the ski area operator, or representative or employee of the ski area operator, and the location where the injury or collision occurred and the circumstances thereof; provided, however, in the event a skier fails to give the notice required by this paragraph, a court, in determining whether or not such failure constitutes a violation of the Ski Safety Act [24-15-1 NMSA 1978], may consider the reasonableness or feasibility of giving such notice; or

(4)use a ski lift, skiing area, slopes or trails while intoxicated or under the influence of any controlled substance.

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

F.   Any skier upon being injured shall indicate, to the ski patrol personnel offering first aid treatment or emergency removal to a first aid room, his acceptance or rejection of such services as provided by the ski area operator. If such service is not refused or if the skier is unable to indicate his acceptance or rejection of such service, the acceptance of the service is presumed to have been accepted by the skier. Such acceptance shall not constitute a waiver of any action for negligent provision of the service by the ski patrol personnel.

§ 24-15-11.  Liability of ski area operators

Any ski area operator shall be liable for loss or damages caused by the failure to follow the duties set forth in Sections 24-15-7 and 24-15-8 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered, and shall continue to be subject to liability in accordance with common-law principles of vicarious liability for the willful or negligent actions of its principals, agents or employees which cause injury to a passenger, skier or other person. The ski area operator shall not be liable to any passenger or skier acting in violation of his duties as set forth in Sections 24-15-9 and 24-15-10 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-12.  Liability of passengers

Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-9 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-13.  Liability of skiers

Any skier shall be liable for loss or damages resulting from violations of the duties set forth in Section 24-15-10 NMSA 1978, and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-14.  Limitation of actions; notice of claim

A. Unless a ski area operator is in violation of the Ski Safety Act [24-15-1 NMSA 1978], with respect to the skiing area and ski lifts, and the violation is a proximate cause of the injury complained of, no action shall lie against such ski area operator by any skier or passenger or any representative of a skier or passenger. This prohibition shall not prevent the bringing of an action against a ski area operator for damages arising from injuries caused by negligent operation, maintenance or repair of the ski lift.

B. No suit or action shall be maintained against any ski area operator for injuries incurred as a result of the use of a ski lift or ski area unless the same is commenced within three years of the time of the occurrence of the injuries complained of.

Created January 9, 2012

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