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Lawsuit filed against a scuba diving center for failing to properly rescue distressed diver and failing to follow rescue procedures.

Issue is going to be whose procedures. Dive shops own procedures or association? This is going to be interesting.

You need to read the entire article and remember these facts probably came from the plaintiff’s position. How do you know this; the plaintiff’s attorney is quoted in the article saying the dive center’s attorneys declined to comment. Now that is investigative journalism. Woodward and Bernstein would be proud.

The deceased died on a recreational scuba diving trip. Allegedly, the deceased surfaced in distress and was not rescued properly: “…dive instructors of negligence and failing to throw Kevin Jerome Kraemer a flotation device and follow emergency procedures.”

Allegedly, the dive staff “…the dive crew tried to rescue and later resuscitate him; they made key errors in the heat of the moment.”

Failing to rescue has never been successful and is very rare. Failing to follow procedures is common. The biggest question from our point of view is whose procedures. If the procedures are the associations, ASTM, etc., nothing like your own group sinking your ship.

See Va. Beach dive center faces lawsuit for failed rescue

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Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff

This case was brought to my attention because of the suit for the ski buddy fatality in Canada in the news recently. (See Canadian suit would hold you liable for your ski buddy’s death.)Are you liable for your buddy’s death if you are participating in a sport together. The issue pivots on whether or not there is an expected responsibility (duty) on behalf of the buddies.

Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Plaintiff: Cully, Adam, and Brandy Jo Rasmussen, children of the deceased and the estate of the deceased

Defendant: Eugene L. Bendotti, husband of the deceased

Plaintiff Claims: negligence

Defendant Defenses: there was no negligence

Holding: for the defendant

This is one of a few cases where a co-participant or in this case dive buddy is held liable for the injuries or deaths of the other participant. In this case, a husband and wife were diving together to recover a snowmobile 100’ deep in a lake. On the fourth dive of the day, the husband realized he had not attached his power inflator to his buoyance compensator. He dropped his weight belt and ascended, leaving his spouse, dive buddy, below.

The wife was found drowned after becoming entangled in a rope.

The buoyance compensator is a PFD (personal floatation device) designed for diving. It is inflated and deflated as you dive to keep your body at the level or depth in the water you want. Many divers will deflate and inflate the buoyance compensator (BC) several times during a dive as they descend, stay at a level and descend or ascend again.

A trial was held to the court which held that the husband did owe a duty to the spouse. However, that duty was terminated once the husband’s emergency occurred. The court also found that the husband’s failure to act as a proper dive buddy was too distant from the cause of death of the spouse to be the proximate cause of her death.

The plaintiff’s appealed.

In this case, the plaintiff’s appealed the errors; they felt the court made in its decision. Those are called “assignment of error(s).” The plaintiff argued that the court came to the incorrect conclusion in the determination of the facts and the application of the law.

Summary of the case

The court accepted several conclusions of fact and law from the trial court that are necessary to understand its analysis and, which are critical legal issues. The first was a dive buddy owes a duty of care to his or her dive buddy. Consequently, a failure to exercise this duty, which results in an injury to the dive buddy, can be negligent.

The existence of a duty is a question of law. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. “The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.”

The trial court found the defendant had not breached his duty because his personnel emergency ended any duty he owed to his dive buddy. The trial court labeled this as the emergency doctrine. However, the appellate court defined the emergency doctrine as:

The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation.

A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making.

The appellate court did not hold the emergency doctrine did not apply; however, its statements indicate such because it went on to discuss proximate cause.

Proximate cause is the term defined to relate the breach of the duty to the injury.

Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent.

The court ruled that the cause of the plaintiff’s death was the plaintiff’s own acts, not caused by the defendant. The court questioned, “…if Gene had properly connected his power inflator, would Bonny be alive today?” The trial court stated, and the appellate court accepted that the act of the defendant descending was not the cause of the plaintiff’s death.

An expert witness opined that the cause of the plaintiff’s death was her failure to have a dive knife with her.

There was too much between the ascension of the defendant and the entanglement which caused the drowning to be linked. The ascension was not the proximate cause of the plaintiff’s death.

So Now What?

The decision in the Canadian court on whether a ski buddy owes a duty of care to another skier will probably not end with the jury’s decision. See Canadian suit would hold you liable for your ski buddy’s death. Ski buddy meaning the guy you don’t know skiing next to you. However, here we have a definitive decision that a dive buddy in a scuba diving owes a duty to their dive buddy.

This is a very different legal relationship than found in competitive sports where someone may be injured due to another participant and the nature of the game. See Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case. Here one participant in the sport is legal responsible, as defined by the sport or activity or sometimes the two people, for the other person.

If you agree to watch or take care of someone in a sport, you may be accepting liability for that person. Be aware.

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Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Cully C. Rasmussen, as Personal Representative, ET AL., Appellants, v. Eugene L. Bendotti, Respondent.

No. 19464-7-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL ONE

107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

August 21, 2001, Filed

SUBSEQUENT HISTORY: [***1] Order Denying Motion and Reconsideration September 26, 2001, Reported at: 2001 Wash. App. LEXIS 2165.

SUMMARY: Nature of Action: The children and the estate of a diver who drowned during a scuba diving excursion sought damages from the diver’s diving partner based on the diving partner’s failure to perform a self-equipment check prior to commencing the dive. The failure to perform the equipment check caused the diving partner to make an emergency ascent during the dive. While the diving partner was ascending to the water’s surface, the diver’s equipment became entangled in a rope which led to the diver’s drowning.

Superior Court: After denying the defendant’s motion for a summary judgment, the Superior Court for Chelan County, No. 98-2-00754-5, Lesley A. Allan, J., on June 30, 2000, entered a judgment in favor of the defendant.

Court of Appeals: Holding that there was sufficient evidence to support the trial court’s conclusion that the defendant’s failure to perform an equipment check prior to the dive was not a proximate cause of the decedent’s death, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Appeal — Findings of Fact — Failure To Assign Error — Effect Unchallenged findings of fact are verities before a reviewing court.

[2] Appeal — Conclusions of Law — Review — Standard of Review An appellate court reviews a trial court’s conclusions of law in a civil action by first determining whether the trial court applied the correct legal standard to the facts under consideration. The trial court’s legal conclusions flowing from its findings, or the ultimate facts of the case, are reviewed de novo.

[3] Negligence — Duty — Question of Law or Fact — Review The existence of a duty of care is a question of law that an appellate court reviews de novo.

[4] Negligence — Duty — Breach — Resulting Emergency — Termination of Duty — Question of Law or Fact — Review Whether an emergency created by the breach of a duty of care terminates the duty is a question of law that an appellate court reviews de novo.

[5] Negligence — Duty — Determination — Scope A cause of action for negligence is grounded on the existence of a duty owed specifically to the plaintiff or to a class or group of people to which the plaintiff belongs.

[6] Negligence — Elements — In General A negligence action is comprised of four elements: (1) duty, (2) breach, (3) proximate cause, and (4) injury.

[7] Negligence — Duty — Scope — Foreseeability — In General The scope of a duty of care turns on the foreseeability of injury; i.e., it turns on whether the risk embraced by the conduct exposes the claimant to injury.

[8] Negligence — Duty — Scope — Foreseeability — Test An injury is foreseeable if it is among the dangers to be perceived reasonably and with respect to which the defendant’s conduct is negligent.

[9] Sports — Scuba Diving — Duty to Diving Partner — Reasonable Prudence A scuba diver owes a duty to a diving partner to act in the manner of a reasonably prudent diver.

[10] Negligence — Duty — Breach — Question of Law or Fact — In General Whether a legal duty of care has been breached is a question of fact.

[11] Sports — Scuba Diving — Duty to Diving Partner — Breach — Failure To Perform Equipment Check A scuba diver breaches the duty of reasonable prudence in relation to a diving partner by failing to perform a self or buddy equipment check prior to commencing a dive.

[12] Negligence — Emergency Doctrine — In General The emergency doctrine is a common law rule by which a person faced with an emergency is not held to the same standards as a person who has time for reflection and deliberation.

[13] Negligence — Emergency Doctrine — One’s Own Making — Effect The emergency doctrine does not apply to excuse a party’s negligence if that negligence contributed to the emergency.

[14] Negligence — Emergency Doctrine — One’s Own Making — Evaluation of Conduct For purposes determining whether an actor’s own negligence prevents application of the emergency doctrine, the actor’s conduct is evaluated as of the time of the negligent act or omission, not when the actor later discovers the negligent act or omission and reacts to it.

[15] Negligence — Proximate Cause — Elements Proximate cause is divided into two elements: cause-in-fact and legal causation. A cause-in-fact is based on the physical connection between an act and an injury. Legal causation is grounded in a policy determination made by the court. The focus in the legal causation analysis is whether, as a matter of policy, the connection between the defendant’s act and the ultimate result is too remote to impose liability. A determination of legal causation depends on mixed considerations of logic, common sense, justice, policy, and precedent.

[16] Negligence — Proximate Cause — Question of Law or Fact — Deference to Trial Court The issue of proximate cause in a negligence action presents a mixed question of law and fact. Insofar as a trial court’s determination of proximate cause necessarily entails factual considerations of “but-for” causation, it is accorded deference by a reviewing court.

[17] Negligence — Proximate Cause — Proof — Speculation Speculation is insufficient to establish proximate cause in a negligence action.

COUNSEL: Douglas J. Takasugi (of Jeffers, Danielson, Sonn & Aylward, P.S.), for appellants.

Thomas F. O’Connell (of Davis, Arneil, Dorsey, Kight), for respondent.

JUDGES: Author: DENNIS J. SWEENEY. Concurring: STEPHEN M. BROWN & KENNETH H. KATO.

OPINION BY: DENNIS J. SWEENEY

OPINION

[**58] [*950] Sweeney, J. [HN1] — To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff’s injury. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998). [HN2] Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Here, the trial court, sitting as the fact finder, found that any negligence on the part of Eugene Bendotti (Gene) was “too attenuated” from Bonny Jo Bendotti’s death to hold Gene legally liable. Gene was Bonny’s scuba diving buddy. He failed to properly attach a power inflator to his buoyancy compensator. This required an emergency ascent. Bonny then drowned after her equipment became [***2] entangled in a rope. We conclude that the trial court’s finding is adequately supported by the evidence, and affirm the judgment dismissing Cully, Adam, and Brandy Jo Rasmussen’s wrongful death suit.

FACTS

Our factual summary here follows the trial court’s unchallenged findings of fact, including those denominated as conclusions of law. Hagemann v. Worth, 56 Wn. App. 85, 89, 782 P.2d 1072 (1989). We refer to Mr. and Mrs. Bendotti as Gene and Bonny. We intend no disrespect by doing so. We use their first names simply for clarity and ease of reference.

Bonny and Gene were married in 1990. They got interested in scuba diving and completed [**59] the necessary scuba certification in April 1996. Their training included an open water dive course and an advanced open water dive course.

In the fall of 1996, the Bendottis were asked to help recover a snowmobile from Lake Wenatchee. They agreed to [*951] help. On October 4, they made one or two dives, located the snowmobile in approximately 100 feet of water, and marked it with a 50-foot line.

The Bendottis returned to Lake Wenatchee on November 2. At first they were unable to locate the snowmobile or marker line. They located [***3] the snowmobile during the second dive and marked it with a longer line and buoy. They then broke for lunch and refilled their air tanks. After the third dive, the Bendottis and others with them decided to try to attach a line to the snowmobile to drag it from the lake. Both descended for their fourth dive.

Gene had, however, inadvertently failed to reconnect his power inflator to his buoyancy compensator. A power inflator inflates a buoyancy compensator which then allows the diver to rise to the surface. And “[b]ecause he and Bonny did not adequately perform buddy and self-equipment checks, it was not discovered.” Clerk’s Papers (CP) at 561. Once in the water, Gene discovered the equipment problem and immediately surfaced. Bonny, however, became entangled in a rope at the 40-foot level “perhaps while ascending herself.” CP at 561. She was unable to disentangle herself and drowned.

Cully, Adam, and Brandy Jo Rasmussen are Bonny’s children. They sued Gene on behalf of themselves and Bonny’s estate. The court denied Gene’s motion for summary judgment and heard the matter without a jury.

The court concluded that Gene owed a duty to Bonny as her scuba [***4] diving “buddy.” Left unstated, but easily inferable given the court’s other conclusions, is the finding that Gene breached that duty by failing to reconnect his power inflator. The court then goes on to conclude that because Gene’s failure to reconnect his power inflator was an emergency, he acted as a reasonably prudent diver when he ditched his weight belt and ascended. It also concluded that Gene’s duty to Bonny terminated because of this emergency. The court then held that the Rasmussens “failed to prove by a preponderance of the evidence any breach of duty by Gene to Bonny occurring prior to Gene facing his own personal [*952] emergency.” CP at 562. The court dismissed the Rasmussens’ claims with prejudice.

The Rasmussens moved for reconsideration. The court denied the motion, but supplemented its original conclusions of law. It concluded that both Gene and Bonny should have checked Gene’s scuba equipment prior to their fourth dive. But their failure to do so placed only Gene at risk. In its supplemental conclusions, the court further reiterated that a diver’s primary duty is to himself, or herself, and that Bonny became entangled only after Gene faced his own emergency. And Gene’s [***5] duty to Bonny terminated once he faced his own emergency.

Finally, the court concluded that Gene’s failure to attach his power inflator was “too attenuated” from Bonny’s subsequent entanglement in the rope to hold him legally responsible for her death. CP at 435.

The Rasmussens appeal the judgment dismissing their claims. Gene appeals the denial of his pretrial motion for summary judgment.

ASSIGNMENTS OF ERROR

The Rasmussens assign error to a number of the court’s conclusions of law. And those assignments of error delineate the issues before us.

The Rasmussens assign error to the following original conclusions of law, which we paraphrase:

. That Gene’s legal duty to Bonny terminated when he was faced with his own emergency during the fourth dive. Conclusion of Law 4.

. The Rasmussens did not prove any breach of duty by Gene to Bonny prior to Gene’s facing his own personal emergency. Conclusion of Law 5.

[**60] The Rasmussens assign error to the following supplemental conclusions of law, which we also paraphrase:

[*953] Failure to perform equipment checks, their own and their buddy’s, put Gene solely at risk. Supplemental Conclusion of Law 3.

. If Gene had improperly loaded a spear gun [***6] which discharged and struck Bonny, his conduct at the surface would have increased the risk to Bonny. But that did not occur. Supplemental Conclusion of Law 4.

. Gene’s failure to check his equipment did not put Bonny at an increased risk of harm. Supplemental Conclusion of Law 5.

. When Gene surfaced, he acted reasonably and his duty to his dive buddy terminated. Supplemental Conclusion of Law 7.

. The connection between Gene’s failure to attach his power inflator on the surface and Bonny’s subsequent entanglement (and death) is too attenuated to hold Gene legally responsible. Supplemental Conclusion of Law 9.

. To hold Gene responsible would make him a guarantor of Bonny’s safety. Supplemental Conclusion of Law 10.

From these assignments of error, the Rasmussens make four basic arguments:

(1) After concluding that Gene owed a duty of care to Bonny (a duty owed by all dive buddies), the court then inconsistently goes on to conclude that Gene did not breach that duty–despite the fact that Gene negligently failed to reconnect his power inflator and perform adequate equipment checks before the fourth dive, contrary to standard diving practices.

(2) After concluding that Gene owed a duty [***7] to Bonny, the court then goes on to conclude that that duty terminated when Gene was faced with his own emergency. The Rasmussens argue that the duty should not have terminated because the emergency Gene was responding to was one of his own making. Brown v. Spokane County Fire Prot. Dist. No. 1100 Wn.2d 188, 197, 668 P.2d 571 (1983); Pryor [*954] v. Safeway Stores, Inc., 196 Wash. 382, 387-88, 83 P.2d 241 (1938), overruled on other grounds by Blaak v. Davidson, 84 Wn.2d 882, 529 P.2d 1048 (1975).

(3) The court concluded that Gene’s failure to perform a self-equipment check did not put Bonny at any increased risk of harm. The Rasmussens urge that if Gene had a duty, as the court found, then Bonny was certainly within the class of people that the duty was intended to protect.

(4) Finally, the court concluded that the connection between Gene’s negligence and Bonny’s death was too attenuated for the death to proximately flow from the breach of duty. Again, the Rasmussens argue that the very purpose of diving with a buddy, a standard obligatory diving practice, is so one diver is available to assist another who encounters difficulty underwater.

[***8] STANDARD OF REVIEW

[1] The Rasmussens challenge only the court’s conclusions of law. The findings of fact are therefore verities on appeal. Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 941, 845 P.2d 1331 (1993).

[2] [HN3] We review the court’s conclusions of law by first determining whether the court applied the correct legal standard to the facts under consideration. Our review is de novo. See State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981) (appellate court determines questions of law). Every conclusion of law, however, necessarily incorporates the factual determinations made by the court in arriving at the legal conclusion (or ultimate fact). See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981) (the logical flow is evidence to basic facts to ultimate facts). For example, the fact that a driver ran a red light is clearly a finding of fact and, therefore, a decision which would demand our deference. But the court’s conclusion of law from that finding that the defendant ran the light and was therefore negligent would be a conclusion (running a red light is negligent), which we [***9] would review de novo.

[**61] [*955] [3] [4] To be more specific, and address the questions raised here, the question of whether Gene had a duty to Bonny as her diving buddy is a question of law which we review de novo. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Likewise, [HN4] the question of whether an emergency created by a breach of that duty (failure to check his equipment) terminated that duty to his buddy (Bonny) is also a question of law, which we review de novo. Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).

But [HN5] the question of the proximal relationship between any breach of Gene’s duty and Bonny’s subsequent death is a mixed question of law and fact, and so requires our deference. See Bell v. McMurray, 5 Wn. App. 207, 213, 486 P.2d 1105 (1971) [HN6] (proximate cause is a mixed question of law and fact, and “is usually for the trier of facts”).

NEGLIGENCE

[5] [6] We begin with the hornbook statement of elements for a cause of action in negligence. [HN7] Negligence requires a duty specifically to the plaintiff or to the class or group of people which includes the plaintiff. See Rodriguez v. Perez, 99 Wn. App. 439, 444, 994 P.2d 874, [***10] [HN8] (“When a duty is owed to a specific individual or class of individuals, that person or persons may bring an action in negligence for breach of that duty.”), review denied, 141 Wn.2d 1020 (2000); Torres v. City of Anacortes, 97 Wn. App. 64, 73, 981 P.2d 891 (1999), review denied, 140 Wn.2d 1007, 999 P.2d 1261 (2000). The plaintiff must then prove that a breach of the duty proximately caused the injury complained of. Hertog, 138 Wn.2d at 275; Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998); Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Finally, of course, there must be some injury. Hertog, 138 Wn.2d at 275. But injury is not at issue here.

DUTY

[7] [8] [HN9] The existence of a duty is a question of law. Hertog, [*956] 138 Wn.2d at 275. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969). “The hazard [***11] that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.” Id.

[9] And on this question, the trial judge’s conclusions of law, while a bit inconsistent, are nonetheless reconcilable.

First, and foremost, the court concluded unequivocally that:

. “[A] scuba diver owes a duty to his buddy . . . .” Conclusion of Law 2, CP at 562.

. “Because Gene and Bonny were dive buddies on November 2, 1996, Gene owed a duty to Bonny to act in the manner of a reasonably prudent diver.” Conclusion of Law 3, CP at 562.

The court’s conclusions are based on its unchallenged factual finding that: “Bonny and Gene received instruction to always dive with a buddy. One reason for this was safety, as a buddy can assist a diver who encounters difficulties underwater.” Finding of Fact 8, CP at 546.

BREACH OF A DUTY OF CARE

[10] [11] [HN10] Whether a duty of care has been breached is a question of fact. Hertog, 138 Wn.2d at 275. And the court’s findings of fact on this question are instructive. The court found that “[s]tandard diving practices [***12] include performing a buddy check and self equipment check prior to each dive. If these checks had been performed, any problem with Gene’s power inflator would likely have been discovered.” Finding of Fact 25, CP at 555. The court also found that Gene and Bonny did not perform a buddy check before the fourth and fatal dive. Findings of Fact 26 and 47.

Given the duty owed by one diver to his or her buddy and the court’s unchallenged finding of fact that those duties were not performed, the legal conclusion that Gene [*957] breached his duty to Bonny is inescapable. [**62] See Williams, 96 Wn.2d at 221 [HN11] (“Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion.” (emphasis omitted)). [HN12] Duties are not owed in the abstract. Nor are duties owed to oneself. Here, the duty owed was to that population intended to be protected by the buddy checks. And that population obviously includes a diver’s buddy–here, Bonny.

Emergency Doctrine

Having concluded that Gene owed a duty to Bonny as her dive buddy, the court then went on to conclude that that duty terminated with Gene’s [***13] own personal emergency. Conclusion of Law 4. The issue raised by the Rasmussens’ assignment of error to this conclusion is whether a duty of care ends with an emergency when the emergency is the result of the defendant’s breach of a duty?

[12] [HN13] The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation. Sandberg v. Spoelstra, 46 Wn.2d 776, 782, 285 P.2d 564 (1955).

The trial judge here concluded that “when Gene was required to so act [because of his personal emergency], his legal duty to Bonny was terminated.” Conclusion of Law 4, CP at 562.

[13] [14] The emergency here was Gene’s discovery of the results of his earlier omission. That is, he discovered that he had failed to properly connect his power inflator to his buoyancy compensator. But that emergency was of his own making. And because of that, he is not entitled to the benefit of the emergency doctrine. McCluskey v. Handorff-Sherman, 68 Wn. App. 96, 111, 841 P.2d 1300 (1992) [HN14] (“It is a well-established principle that the emergency doctrine [***14] does not apply where a person’s own negligence put him in the emergency situation.”), aff’d, 125 Wn.2d 1, 882 P.2d 157 (1994).

[HN15] [*958] A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making. Brown, 100 Wn.2d at 197. So, for example, if Gene, or for that matter Bonny, had inadvertently disconnected Gene’s power inflator while diving and Gene reacted to the emergency by immediately ascending, his conduct could be judged based on the emergency. But here, the court had already found that he had inadvertently, i.e., negligently, failed to perform his self and buddy checks. His conduct must then be evaluated at that time (when he was obligated to check his equipment) and not when he later discovered his negligent omission and reacted to it.

The court then erred by concluding that Gene’s emergency cut off any duty he owed to Bonny. Brown v. Yamaha Motor Corp., 38 Wn. App. 914, 920, 691 P.2d 577 (1984) (emergency doctrine is applicable only if the defendant’s negligence did not contribute to the emergency).

PROXIMATE CAUSE [***15]

The court concluded that “the connection between Gene Bendotti’s failure to attach his power inflator on the surface and Bonny Bendotti’s subsequent entanglement is too attenuated a connection to hold Gene Bendotti legally responsible for Bonny Bendotti’s death[.]” Suppl. Conclusion of Law 9, CP at 435.

[15] [16] [HN16] Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). Meneely v. S.R. Smith, Inc., 101 Wn. App. 845, 862-63, 5 P.3d 49 (2000). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. Id. at 863. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent. Id.

[HN17] The question of proximate cause then is a mixed question [*959] of law and fact. Bell, 5 Wn. App. at 213. We must then defer to the trial judge’s determination [***16] of proximate cause because it necessarily [**63] entails factual considerations of “but-for” causation. Here, the question simply put is, if Gene had properly connected his power inflator, would Bonny be alive today? The court held that the connection between Gene’s breach and Bonny’s death was too attenuated to say that had he connected his power inflator she would still be alive. The evidence amply supports this fact.

Jon Hardy, a scuba diving expert, testified that there was no connection between Gene’s failure to attach his power inflator and Bonny’s subsequent entanglement. Nor did he believe there was a connection between the loss of buddy contact and Bonny’s death. He further stated that he believed the proximate cause of Bonny’s death was her failure to carry a dive knife.

[17] How Bonny became entangled and why she was not able to free herself is not known. Also unknown is whether Gene could have saved her in any event. So, whether Gene could have saved her is speculation. And [HN18] speculation is not sufficient to establish proximate cause. Jankelson v. Sisters of Charity, 17 Wn.2d 631, 643, 136 P.2d 720 (1943) [HN19] (“‘The cause of an accident may be said to be speculative when, [***17] from a consideration of all the facts, it is as likely that it happened from one cause as another.'”) (quoting Frescoln v. Puget Sound Traction, Light & Power Co., 90 Wash. 59, 63, 155 P. 395 (1916)).

CONCLUSION

We affirm the trial court’s judgment in favor of Gene because its conclusion that the result (Bonny’s death) was too attenuated from Gene’s breach of his duty (failure to properly attach his power inflator) is amply supported by the evidence.

Brown, A.C.J., and Kato, J., concur.

Recinsideration denied September 26, 2001.

WordPress Tags: Rasmussen,Bendotti,Wash,LEXIS,Personal,Representative,Appellants,Eugene,Respondent,COURT,APPEALS,WASHINGTON,DIVISION,THREE,PANEL,August,SUBSEQUENT,HISTORY,Order,Motion,Reconsideration,September,SUMMARY,Nature,Action,estate,diver,failure,self,equipment,ascent,Superior,defendant,judgment,Chelan,Lesley,Allan,June,conclusion,death,HEADNOTES,OFFICIAL,REPORTS,Appeal,Findings,Fact,Assign,Error,Effect,verities,Conclusions,Review,Standard,Negligence,Question,existence,Breach,Emergency,Termination,Whether,Determination,Scope,plaintiff,Elements,General,injury,claimant,Test,dangers,Sports,Scuba,Partner,Reasonable,Prudence,manner,Perform,Check,relation,buddy,Doctrine,person,reflection,deliberation,Evaluation,Conduct,purposes,actor,omission,Proximate,Cause,causation,connection,Legal,policy,analysis,logic,justice,precedent,Deference,Trial,Insofar,Proof,Speculation,COUNSEL,Douglas,Takasugi,Jeffers,Danielson,Sonn,Aylward,Thomas,Connell,Davis,Arneil,Dorsey,JUDGES,Author,DENNIS,SWEENEY,STEPHEN,BROWN,KENNETH,KATO,OPINION,Crowe,Gaston,Hertog,Seattle,Here,finder,Gene,Bonny,buoyancy,Adam,Brandy,FACTS,Hagemann,Worth,reference,certification,April,Bendottis,Lake,Wenatchee,October,feet,foot,November,marker,tanks,Both,fourth,Clerk,Papers,Once,jury,Left,Rasmussens,preponderance,entanglement,denial,ASSIGNMENTS,Supplemental,guarantor,From,arguments,buddies,Spokane,Fire,Prot,Dist,Pryor,Safeway,Stores,Blaak,Davidson,Again,purpose,Nordstrom,Credit,Revenue,State,Williams,determinations,Universal,Minerals,Hughes,example,driver,decision,Likewise,Mains,Farm,Homeowners,Worthington,relationship,Bell,McMurray,trier,statement,Rodriguez,Perez,individuals,Torres,Anacortes,Schooley,Pinch,Deli,Rikstad,Holmberg,instruction,CARE,Given,duties,Where,emphasis,population,assignment,proposition,Sandberg,Spoelstra,discovery,McCluskey,Handorff,Sherman,principle,situation,Yamaha,Motor,Corp,Suppl,Smith,Hardy,Also,event,Jankelson,Sisters,accident,Frescoln,Puget,Sound,Traction,Power,Recinsideration,appellate,novo,four,inflator,compensator,snowmobile


Oregon Skier Safety Act

Oregon Skier Safety Act

OREGON REVISED STATUTES

TITLE 3 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS 

Chapter 30 – Actions and Suits in Particular Cases 

SKIING ACTIVITIES 

GO TO OREGON REVISED STATUTES ARCHIVE DIRECTORY

ORS § 30.970 (2011)

30.970 Definitions for ORS 30.970 to 30.990.

    As used in ORS 30.970 to 30.990:

(1) “Inherent risks of skiing” includes, but is not limited to, those dangers or conditions which are an integral part of the sport, such as changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare spots, creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with other skiers and a skier’s failure to ski within the skier’s own ability.

(2) “Injury” means any personal injury or property damage or loss.

(3) “Skier” means any person who is in a ski area for the purpose of engaging in the sport of skiing or who rides as a passenger on any ski lift device.

(4) “Ski area” means any area designated and maintained by a ski area operator for skiing.

(5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.

HISTORY: 1979 c.665 § 1

NOTES OF DECISIONS

Where plaintiff did not argue to trial court that her injuries were caused by combination of inherent risk of skiing and operator negligence which would have made doctrine of comparative fault applicable, trial court did not err in instructing jury that if plaintiff’s injury was caused by inherent risk of skiing, plaintiff could not recover. Jessup v. Mt. Bachelor, Inc., 101 Or App 670, 792 P2d 1232 (1990), Sup Ct review denied

Vicarious liability of ski area operator for negligence of its employee is not removed solely by fact that employee is skier. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

CASE NOTES

1. When both an inherent risk and a ski area operator’s negligence contribute to a skier’s injury, the questions of liability and apportionment of fault are for the trier of fact. Nolan v. Mt. Bachelor, Inc., 115 Ore. App. 27, 836 P.2d 770, 1992 Ore. App. LEXIS 1681 (1992), affirmed by, remanded by 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

2. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

3. Given statute’s reference to Or. Rev. Stat. § 31.600, the comparative negligence statute, the legislature contemplated the possibility that skier’s injury might result in part from and inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

4. Skier is barred from recovery against ski area operator for injury caused solely by an inherent risk of skiing, but if injury is caused by a combination of inherent risk of skiing and operator negligence, doctrine of comparative fault would apply. Jessup v. Mt. Bachelor, Inc., 101 Ore. App. 670, 792 P.2d 1232, 1990 Ore. App. LEXIS 526 (1990), review denied by 310 Ore. 475, 799 P.2d 646 (1990).

5. Or. Rev. Stat. § 30.970 shields ski area operators from liability for collisions between customers, not from accountability for a collision caused by an employee’s negligence. Nolan v. Mt. Bachelor, Inc., 115 Ore. App. 27, 836 P.2d 770, 1992 Ore. App. LEXIS 1681 (1992), affirmed by, remanded by 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.975 Skiers assume certain risks.

    In accordance with ORS 31.600 and notwithstanding ORS 31.620 (2), an individual who engages in the sport of skiing, alpine or nordic, accepts and assumes the inherent risks of skiing insofar as they are reasonably obvious, expected or necessary.

HISTORY: 1979 c.665 § 2

NOTES OF DECISIONS

Where plaintiff did not argue to trial court that her injuries were caused by combination of inherent risk of skiing and operator negligence which would have made doctrine of comparative fault applicable, trial court did not err in instructing jury that if plaintiff’s injury was caused by inherent risk of skiing, plaintiff could not recover. Jessup v. Mt. Bachelor, Inc., 101 Or App 670, 792 P2d 1232 (1990), Sup Ct review denied

[Former] ORS 18.470 allows jury to consider comparative negligence of skier’s own or another’s negligence as well as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 115 Or App 27, 836 P2d 770 (1992), aff’d 317 Or 328, 856 P2d 305 (1993)

Collision between skier and ski instructor employed by ski area operator was not collision with another skier that skier accepts as inherent risk of skiing. Nolan v. Mt. Bachelor, Inc., 317 Or 328, 856 P2d 305 (1993)

Assumption of risk defense is available only to ski area operators. Stiles v. Freemotion, Inc., 185 Or App 393, 59 P3d 548 (2002), Sup Ct review denied

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part form the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

2. Or. Rev. Stat. § 30.975 insulates a defendant ski operator from liability resulting from the inherent risks of skiing and bars a plaintiff’s claim only if the injury is due solely to those inherent risks; to the extent that injury is due to negligence of a ski operator’s employees, this section does not bar a plaintiff’s recovery. Pierce v. Mt. Hood Meadows Oregon, Ltd., 118 Ore. App. 450, 847 P.2d 909, 1993 Ore. App. LEXIS 262 (1993), review denied by 317 Ore. 583, 859 P.2d 540 (1993).

3. Skier is barred from recovery against ski area operator for injury caused solely by an inherent risk of skiing, but if injury is caused by a combination of inherent risk of skiing and operator negligence, doctrine of comparative fault would apply. Jessup v. Mt. Bachelor, Inc., 101 Ore. App. 670, 792 P.2d 1232, 1990 Ore. App. LEXIS 526 (1990), review denied by 310 Ore. 475, 799 P.2d 646 (1990).

30.980 Notice to ski area operator of injury to skier; injuries resulting in death; statute of limitations; informing skiers of notice requirements.

    (1) A ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury.

(2) When an injury results in a skier’s death, the required notice of the injury may be presented to the ski area operator by or on behalf of the personal representative of the deceased, or any person who may, under ORS 30.020, maintain an action for the wrongful death of the skier, within 180 days after the date of the death which resulted from the injury. However, if the skier whose injury resulted in death presented a notice to the ski area operator that would have been sufficient under this section had the skier lived, notice of the death to the ski area operator is not necessary.

(3) An action against a ski area operator to recover damages for injuries to a skier shall be commenced within two years of the date of the injuries. However, ORS 12.160 and 12.190 apply to such actions.

(4) Failure to give notice as required by this section bars a claim for injuries or wrongful death unless:

(a) The ski area operator had knowledge of the injury or death within the 180-day period after its occurrence;

(b) The skier or skier’s beneficiaries had good cause for failure to give notice as required by this section; or

(c) The ski area operator failed to comply with subsection (5) of this section.

(5) Ski area operators shall give to skiers, in a manner reasonably calculated to inform, notice of the requirements for notifying a ski area operator of injury and the effect of a failure to provide such notice under this section.

HISTORY: 1979 c.665 § 3

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by and inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.985 Duties of skiers; effect of failure to comply.

    (1) Skiers shall have duties which include but are not limited to the following:

(a) Skiers who ski in any area not designated for skiing within the permit area assume the inherent risks thereof.

(b) Skiers shall be the sole judges of the limits of their skills and their ability to meet and overcome the inherent risks of skiing and shall maintain reasonable control of speed and course.

(c) Skiers shall abide by the directions and instructions of the ski area operator.

(d) Skiers shall familiarize themselves with posted information on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail.

(e) Skiers shall not cross the uphill track of any surface lift except at points clearly designated by the ski area operator.

(f) Skiers shall not overtake any other skier except in such a manner as to avoid contact and shall grant the right of way to the overtaken skier.

(g) Skiers shall yield to other skiers when entering a trail or starting downhill.

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

(i) Skiers shall not board rope tows, wire rope tows, j-bars, t-bars, ski lifts or other similar devices unless they have sufficient ability to use the devices, and skiers shall follow any written or verbal instructions that are given regarding the devices.

(j) Skiers, when involved in a skiing accident, shall not depart from the ski area without leaving their names and addresses if reasonably possible.

(k) A skier who is injured should, if reasonably possible, give notice of the injury to the ski area operator before leaving the ski area.

(L) Skiers shall not embark or disembark from a ski lift except at designated areas or by the authority of the ski area operator.

(2) Violation of any of the duties of skiers set forth in subsection (1) of this section entitles the ski area operator to withdraw the violator’s privilege of skiing.

HISTORY: 1979 c.665 § 4

CASE NOTES

1. It was error for trial court to submit jury instruction form in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part form the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

30.990 Operators required to give skiers notice of duties.

    Ski area operators shall give notice to skiers of their duties under ORS 30.985 in a manner reasonably calculated to inform skiers of those duties.

HISTORY: 1979 c.665 § 5

1. It was error for trial court to submit jury instruction from in action brought under Oregon skiing activities law in which jury was instructed that if the injury, if any, was caused by an inherent risk of skiing which was reasonably obvious, expected, or necessary, its verdict must be for defendant; the skiing activities law contemplates the possibility that a skier’s injury might result in part from an inherent risk of skiing and in part from the skier’s own or another’s negligence. Nolan v. Mt. Bachelor, Inc., 317 Ore. 328, 856 P.2d 305, 1993 Ore. LEXIS 115 (1993).

1. 36 Willamette L. Rev. 83, COMMENT: CLEANING UP THE OREGON REVISED STATUTES: A MODEST PROPOSAL ON PUBLIC BODIES.

 


Idaho Ski Safety Act

Idaho Ski Safety Act

IDAHO CODE

CODE OF CIVIL PROCEDURE

TITLE 6. ACTIONS IN PARTICULAR CASES

CHAPTER 11. RESPONSIBILITIES AND LIABILITIES OF SKIERS AND SKI AREA OPERATORS

Go to the Idaho Code Archive Directory

Idaho Code § 6-1101 (2012)

§ 6-1101. Legislative purpose

The legislature finds that the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho. Since 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 operation, it is the purpose of this chapter to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury, and to define those risks which the skier expressly assumes and for which there can be no recovery.

HISTORY: I.C., § 6-1101, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

ANALYSIS

When the legislature stated the legislative purpose of this chapter, it included the statement that “the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho,” and since this was a legitimate legislative goal and satisfies the rational basis test, this chapter does not violate the equal protection clause of the constitution. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The government of Idaho clearly has a legitimate interest in promoting the sport of skiing, because the sport “significantly contribut[es] to the economy of Idaho.” This chapter bears a rational relationship to this interest because it clarifies the allocation of risks and responsibilities between ski area operators and skiers. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

CITED IN: Kirkland ex rel. Kirkland v. Blain County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000).

§ 6-1102. Definitions

The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section.

(1) “Aerial passenger tramway” 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, which is subject to regulations adopted by the proper authority.

(2) “Passenger” means any person who is lawfully using an aerial passenger tramway, or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.

(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho.

(4) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area or aerial passenger tramway.

(5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway.

(6) “Skier” means any person 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 the use of an aerial passenger tramway.

(7) “Ski slopes and trails” mean those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing.

HISTORY: I.C., § 6-1102, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 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:

(1) To mark all trail 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;

(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails;

(3) To mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty; and those slopes, trails, or areas which are closed, shall be so marked at the top or entrance;

(4) 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 thereon as to it [its] relative degree of difficulty;

(5) To designate by trail board or otherwise which trails or slopes are open or closed;

(6) To place, or cause to be placed, whenever snowgrooming or snowmaking 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 of such trail or slope;

(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;

(8) To provide a ski patrol with qualifications meeting the standards of the national ski patrol system;

(9) To post a sign at the bottom of all aerial passenger tramways which advises the passengers to seek advice if not familiar with riding the aerial passenger tramway; and

(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

HISTORY: I.C., § 6-1103, as added by 1979, ch. 270, § 1, p. 701.

NOTES: COMPILER’S NOTES. The national ski patrol provides training and education programs for emergency rescuers serving the outdoor recreation community. See http://www.nsp.org.

The bracketed word “its” in subsection (4) was inserted by the compiler.

When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

Under this chapter, a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).

Setting up a NASTAR race course is a normal part of running a ski area, and thus, anything a ski area does to eliminate or lessen the inherent risks of skiing in connection with setting up the race course or protecting skiers from hazardous obstacles cannot be the basis of liability for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Under § 6-1106, anyone who strikes a ski lift tower while skiing is considered to have expressly assumed the risk and legal responsibility for any injury which results, and in addition, under subsection (10) of this section, anything a ski area operator does to eliminate, alter, control or lessen the risks associated with lift towers — such as placing a fence around a tower or padding it — could not result in the operator being held liable for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Ski area operator owed amateur race skier no duty to reduce the risk of his striking and injuring himself on a lift tower. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in this section and § 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in this section and § 6-1104 or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

While one of the duties imposed on ski area operators by this section is to mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty, even assuming that a ski area operator may not have properly located a sign or properly designed, constructed or padded the signpost, this chapter excludes any liability of ski area operator to the plaintiffs as a result of these activities; while subdivision (3) of this section did require ski area operator to mark the entrance to each of its slopes, trails or areas, subsection (10) of this section negates any duty to accomplish this marking to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The duties described in this section and § 6-1104 are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care, and in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

In conducting training sessions, the defendant foundation did not have the responsibility to fulfill the duties under this section; the mere fact that the defendant foundation set up the course within the ski area did not make them a “ski operator.” By setting up the course the defendant foundation was not engaged in any duties or activities of a “ski area operator.” By making use of the ski area for training, defendant foundation did not exercise “operational responsibility” for the ski area, and the court correctly denied defendant’s summary judgment on that basis. Davis v. Sun Valley Ski Educ. Found., Inc., 130 Idaho 400, 941 P.2d 1301 (1997).

A ski area operator does not have the duty to provide a ski patrol that will determine the identity of a skier who was involved in a ski accident with another skier. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

An injury to the body caused by falling while skiing in an unmarked, ungroomed area is an inherent risk of skiing and a ski resort had no duty to take some kind of affirmative steps to have prevented skier from being injured. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways

Every ski area operator shall have the duty to construct, operate, maintain and repair any aerial passenger tramway in accordance with the American national standards safety requirements for aerial passenger tramways.

HISTORY: I.C., § 6-1104, as added by 1979, ch. 270, § 1, p. 701.

NOTES: COMPILER’S NOTES. The American national standards institute’s current publication covering tramway safety is ANSI B77.1-2006, “Passenger Ropeway & Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirement.”

ANALYSIS

In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in § 6-1103 and this section are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in § 6-1103 and this section or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The duties described in § 6-1103 and this section are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care; in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

§ 6-1104. Duties of ski area operators with respect to aerial passenger tramways

Every ski area operator shall have the duty to construct, operate, maintain and repair any aerial passenger tramway in accordance with the American national standards safety requirements for aerial passenger tramways.

HISTORY: I.C., § 6-1104, as added by 1979, ch. 270, § 1, p. 701.

NOTES: COMPILER’S NOTES. The American national standards institute’s current publication covering tramway safety is ANSI B77.1-2006, “Passenger Ropeway & Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirement.”

In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in § 6-1103 and this section are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in § 6-1103 and this section or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The duties described in § 6-1103 and this section are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care; in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

§ 6-1105. Duties of passengers

Every passenger shall have the duty not to:

(1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;

(2) Drop, throw or expel any object from an aerial passenger tramway;

(3) Do any act which shall interfere with the running or operation of an aerial passenger tramway;

(4) Use any aerial passenger tramway if the passenger does not have the ability to use it safely without instruction until the passenger has requested and received sufficient instruction to permit safe usage;

(5) Embark on an aerial passenger tramway without the authority of the ski area operator;

(6) Use any aerial passenger tramway without engaging such safety or restraining devices as may be provided.

HISTORY: I.C., § 6-1105, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 6-1106. Duties of skiers

It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken.

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 including any injury caused by the following, all whether above or below snow surface: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code. 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 responsibility for collisions by any skier while actually skiing, with any person, shall be solely that of the individual or individuals involved in such collision and not that of the ski area operator.

No person shall place any object in the skiing area or on the uphill track of any aerial passenger tramway which may cause a passenger or skier to fall; 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; or depart when involved in a skiing accident, from the scene of the accident without leaving personal identification, including name and address, before notifying the proper authorities or obtaining assistance when that person knows that any other person involved in the accident is in need of medical or other assistance.

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

HISTORY: I.C., § 6-1106, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 6-1107. Liability of ski area operators

Any ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in sections 6-1103 and 6-1104, Idaho Code, where the violation of duty is causally related to the loss or damage suffered. The ski area operators shall not be liable to any passenger or skier acting in violation of their duties as set forth in sections 6-1105 and 6-1106, Idaho Code, where the violation of duty is causally related to the loss or damage suffered; nor shall a ski area operator be liable for any injury or damage to a person who is not legally entitled to be in the ski area; or for any loss or damages caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway.

HISTORY: I.C., § 6-1107, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in §§ 6-1103 and 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

An injury to the body caused by falling while skiing in an unmarked, ungroomed area is an inherent risk of skiing and a ski resort had no duty to take some kind of affirmative steps to have prevented skier from being injured. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

§ 6-1108. Liability of passengers

Any passenger shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1105, Idaho Code, 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.

HISTORY: I.C., § 6-1108, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

§ 6-1109. Liability of skiers

Any skier shall be liable for loss or damages resulting from violations of the duties set forth in section 6-1106, Idaho Code, 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.

HISTORY: I.C., § 6-1109, as added by 1979, ch. 270, § 1, p. 701.

NOTES:

A.L.R.

Skier’s liability for injuries to or death of another person. 75 A.L.R.5th 583.


Arizona Ski Safety Statutes

Arizona Ski Safety Statutes

ARIZONA REVISED STATUTES

TITLE 5. Amusements and Sports

Chapter 7. Skiing

Article 1. General Provisions

Go to the Arizona Code Archive Directory

A.R.S. § 5-701 (2012)

§ 5-701. Definitions

In this chapter, unless the context otherwise requires:

1. “Base area lift” means a passenger tramway that skiers ordinarily use without first using another passenger tramway.

2. “Chair lift” means a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans.

3. “Competitor” means a skier actually engaged in competition or in practice for competition with the permission of a ski area operator on any slope or trail or portion of any slope or trail designated for competition by the ski area operator.

4. “Conditions of ordinary visibility” means daylight and, if applicable, nighttime in nonprecipitating weather.

5. “Inherent dangers and risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator. Inherent dangers and risks of skiing include:

(a) Changing weather conditions.

(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.

(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.

(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.

(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.

(f) Collisions with other skiers.

(g) The failure of skiers to ski within their own abilities.

6. “Passenger tramway” means a device used to transport passengers uphill on skis or in cars on tracks or suspended in the air by the use of steel cables, chains, belts or ropes, usually supported by trestles or towers with one or more spans.

7. “Rope tow” means a mode of transportation that pulls a skier riding on skis as the skier grasps the rope with the skier’s hands.

8. “Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state.

9. “Ski area operator” means any corporation, company, partnership, firm, association or other commercial entity, including a natural person, and its employees, agents, members, successors in interest, affiliates and assigns that have responsibility for the operations of a ski area.

10. “Ski Slopes and Trails” means those areas designated by a ski area operator for use by skiers for any of the purposes listed in paragraph 11.

11. “Skier” means a person using a ski area for the purpose of skiing or sliding downhill on snow or ice on skis, a toboggan, sled, tube, skibob or snowboard or any other device, using any of the facilities of a ski area, including ski slopes and trails, or observing any activities in a ski area as a sightseer or visitor.

12. “Surface lift” means a mode of transportation that pulls skiers riding on skis by means of attachment to an overhead cable supported by trestles or towers. Surface lift includes a J-bar, a T-bar, a platter pull and any similar device.

History: Last year in which legislation affected this section: 1997

§ 5-702. Posting passenger information signs

A. A ski area operator shall maintain a sign system with concise, simple and pertinent information for the protection and instruction of people on a passenger tramway.

B. A ski area operator shall prominently display signs that are readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime passengers, as follows:

1. At or near the loading point of each passenger tramway, rope tow and surface lift advising that any person not familiar with the operation of the tramway, rope tow or surface lift should ask ski area personnel for assistance and instruction.

2. In a conspicuous place at the loading area of each two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car.

3. In the interior of each car in a two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car and that gives instructions for procedures in the case of emergencies.

4. At all chair lifts stating the following:

(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (c) of this paragraph.

(b) “Keep ski tips up” or “keep tips up”, which shall be posted ahead of any point where skis may come in contact with a platform or the snow surface while a skier is seated in the chair lift.

(c) “Prepare to unload”, which shall be posted at least fifty feet ahead of the unloading area.

(d) “Remove pole straps from wrists”, which shall be posted where applicable.

(e) “Stop gate”, which shall be posted where applicable.

(f) “Unload here”, which shall be posted at the point designated for unloading.

5. At all rope tows and surface lifts stating the following:

(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (b) of this paragraph.

(b) “Prepare to unload”, which shall be posted at least fifty feet ahead of each unloading area.

(c) “Remove pole straps from wrists”, which shall be posted where applicable.

(d) “Safety gate”, “stay in tracks” or “stop gate”, which shall be posted where applicable.

(e) “Unload here”, which shall be posted at the point designated for unloading or where applicable.

C. At the operator’s discretion a ski area operator may post additional signs not required by subsection B.

D. Before opening a passenger tramway to the public each day, a ski area operator shall inspect the tramway for the presence of the signs required by subsection B or that are posted pursuant to subsection C.

E. The extent of the responsibility of a ski area operator under this section is to post and maintain the signs required by subsection B and to maintain any signs posted pursuant to subsection C. It is a rebuttable presumption that all passengers and skiers saw and understood the signs if evidence exists that the signs required by subsection B or that are posted pursuant to subsection C were posted and the signs were maintained.

History: Last year in which legislation affected this section: 1997

§ 5-703. Posting ski information signs

A. A ski area operator shall maintain a sign and marking system with concise, simple and pertinent information for the protection and instruction of skiers. The signs required by this section shall be readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime skiers.

B. A ski area operator shall place a sign that depicts and explains signs and symbols that skiers may encounter in the ski area in a position where all skiers who are proceeding to the uphill loading point of each base area lift will see the sign. The sign shall depict and explain at least the following signs and symbols:

1. A green circle and the word “easier”, which designates the least difficult ski slopes and trails of the ski area.

2. A blue square and the words “more difficult”, which designates the ski slopes and trails of the ski area that have a degree of difficulty between the least difficult and most difficult slopes and trails.

3. A black diamond and the words “most difficult”, which designates the most difficult ski slopes and trails of the ski area.

4. A figure in the shape of a skier with a band running diagonally from corner to corner of the sign with the word “closed” printed beneath the emblem.

C. If applicable, a ski area operator shall place a sign at or near the loading point of a passenger tramway that states one of the following:

1. If the tramway transports passengers only to the more difficult or most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘more difficult’ (blue square emblem) and ‘most difficult’ (black diamond emblem) slopes and trails only.”.

2. If the tramway transports passengers only to the most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘most difficult’ (black diamond emblem) slopes and trails only.”.

D. If a ski area operator closes a ski slope or trail or a portion of a ski slope or trail to the public, the operator shall place a sign notifying skiers that the slope or trail or portion of the slope or trail is closed at each identified entrance to the slope or trail or closed portion of the slope or trail. In lieu of placing a sign at each identified entrance, the ski area operator may close off the entrance with rope or fences.

E. A ski area operator shall place a sign at or near the beginning of each ski slope or trail that contains the appropriate symbol of the relative degree of difficulty of that slope or trail as set forth in subsection B. The requirements of this subsection do not apply to a ski slope or trail that is designated “easier” if a skier may substantially view the slope or trail in its entirety before beginning to ski the slope or trail.

F. A ski area operator shall mark the ski area boundaries that are designated on the trail map.

G. A ski area operator shall mark all ski lift tickets and season passes that the operator sells or makes available to skiers with the following in clearly readable print:

WARNING: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions, existing and changing snow surface conditions, surface or subsurface conditions, whether marked or unmarked, collisions with natural or man-made objects, whether marked or unmarked and the failure of skiers to ski within their own abilities.

H. A ski area operator shall post and maintain signs where ski lift tickets and ski school lessons are sold and in a location that is clearly visible to skiers who are proceeding to the uphill loading point of each base area lift that state the following in clearly readable print:

WARNING—IMPORTANT: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing. Some of these risks are listed on your lift ticket or season pass. Please review your ticket or pass and ask the ski area personnel for more information.

History: Last year in which legislation affected this section: 1997

§ 5-704. Additional duties of ski area operators

A. If maintenance equipment is being used to maintain or groom any ski slope or trail that a ski area operator has not designated as closed pursuant to section 5-703, subsection D, the ski area operator shall place a conspicuous notice at or near the beginning of the slope or trail and at any entrance points to the slope or trail that notifies skiers about the presence of the equipment.

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

1. One lighted head lamp.

2. One lighted red tail lamp.

3. A red or orange flag that is at least forty square inches in size and that is mounted at least five feet above the bottom of the tracks.

C. A ski area operator has no duties to any skier who skis beyond the designated boundaries of the ski area.

History: Last year in which legislation affected this section: 1997

§ 5-705. Duties of skiers in any action against the ski area operator

In any civil action brought by a skier against a ski area operator, the duties of a skier shall be as follows:

1. At all times a skier has the sole responsibility to know the range of the skier’s own ability to negotiate a ski slope or trail and to ski within the limits of that ability. A skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing.

2. Before using a chair lift, passenger tramway, rope tow or surface lift, a skier shall have the knowledge and ability to safely load, ride and unload from the device.

3. A skier shall maintain control of the skier’s speed and course at all times when skiing and shall maintain a proper lookout to enable the skier to avoid collisions with other skiers and with natural and man-made objects, whether marked or unmarked.

4. A skier shall avoid snow maintenance and grooming equipment, vehicles, lift towers, signs and other equipment located on ski slopes and trails.

5. A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property. A skier is presumed to have seen and understood all signs and notices posted pursuant to sections 5-702, 5-703 and 5-704. Under conditions of decreased visibility, the duty rests on the skier to locate and ascertain the meaning of all the signs and notices.

6. A skier shall only use skis, snowboards and other equipment that have been equipped with a functional strap or other device designed to reduce the risk of runaway equipment.

7. A skier shall not ski on a ski slope or trail or a portion of a ski slope or trail that a ski area operator has designated as closed pursuant to section 5-703, subsection D.

8. A skier shall not begin to ski from a stationary position or enter a ski slope or trail from the side unless the skier is able to avoid colliding with moving skiers already on the ski slope or trail.

9. A skier shall not cross the uphill track or place any object in the uphill track of a rope tow or surface lift except at locations that have been designated for crossing by a ski area operator.

10. A skier shall not move uphill on any passenger tramway or use any ski slope or trail while the skier’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug.

11. A skier involved in a collision with another skier that results in an injury shall not leave the vicinity of the collision before giving the skier’s name and current address to an employee of the ski area operator or a member of a paid or voluntary ski patrol. This paragraph does not prohibit a skier from leaving the scene of a collision to secure first aid for a person who is injured in the collision. If a skier leaves the scene of a collision to secure first aid, the skier shall leave the skier’s name and current address as required by this paragraph after securing the first aid.

12. A skier shall not knowingly enter the public or private lands of an adjoining ski area if the owner of that land has closed that land to skiers and the landowner or the ski area operator has designated the adjoining land as closed.

History: Last year in which legislation affected this section: 1997

§ 5-706. Release of liability

In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.

History: Last year in which legislation affected this section: 1997

§ 5-707. Competition

A. Before the beginning of any competition, a ski area operator shall allow any competitor a reasonable visual inspection of the course or area where the competition is to be held.

B. A competitor accepts the risk of all course conditions, including weather and snow conditions, course construction or layout and obstacles that a visual inspection immediately before the run could have revealed.

C. In any action brought by a competitor against any ski area operator, if the ski area operator proves that the participant in the competition signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.

HISTORY: Last year in which legislation affected this section: 1997