New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

 

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


New Book Aids Both CEOs and Students

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

    Risk

        Perception versus Actual Risk

        Risk v. Reward

        Risk Evaluation

    Risk Management Strategies

        Humans & Risk

        Risk = Accidents

        Accidents may/may not lead to litigation

    How Do You Deal with Risk?

    How Does Acceptance of Risk Convert to Litigation?

    Negative Feelings against the Business

Risk, Accidents & Litigation

        No Real Acceptance of the Risk

        No Money to Pay Injury Bills

        No Health Insurance

        Insurance Company Subrogation

        Negative Feelings

Litigation

    Dealing with Different People

    Dealing with Victims

        Develop a Friend & Eliminate a Lawsuit

        Don’t Compound Minor Problems into Major Lawsuits

    Emergency Medical Services

    Additional Causes of Lawsuits in Outdoor Recreation

        Employees

        How Do You Handle A Victim?

        Dealing with Different People

        Dealing with Victims

Legal System in the United States

    Courts

        State Court System

        Federal Court System

        Other Court Systems

    Laws

    Statutes

    Parties to a Lawsuit

    Attorneys

    Trials

Law

    Torts

        Negligence

            Duty

            Breach of the Duty

            Injury

            Proximate Causation

            Damages

        Determination of Duty Owed

        Duty of an Outfitter

        Duty of a Guide

        Duty of Livery Owner

        Duty of Rental Agent

        Duty of Volunteer Youth Leader

        In Loco Parentis

    Intentional Torts

    Gross Negligence

    Willful & Wanton Negligence

    Intentional Negligence

    Negligence Per Se

    Strict Liability

    Attractive Nuisance

    Results of Acts That Are More than Ordinary Negligence

    Product Liability

    Contracts

        Breach of Contract

        Breach of Warranty

        Express Warranty

        Implied Warranty

            Warranty of Fitness for a Particular Purpose

            Warranty of Merchantability

            Warranty of Statute

    Detrimental Reliance

    Unjust Enrichment

    Liquor Liability

    Food Service Liability

    Damages

        Compensatory Damages

        Special Damages

        Punitive Damages

Statutory Defenses

    Skier Safety Acts

    Whitewater Guides & Outfitters

    Equine Liability Acts

 

Legal Defenses

    Assumption of Risk

        Express Assumption of Risk

        Implied Assumption of Risk

        Primary Assumption of Risk

        Secondary Assumption of Risk

    Contributory Negligence

    Assumption of Risk & Minors

    Inherent Dangers

    Assumption of Risk Documents.

        Assumption of Risk as a Defense.

        Statutory Assumption of Risk

        Express Assumption of Risk

    Contributory Negligence

    Joint and Several Liability

Release, Waivers & Contracts Not to Sue

    Why do you need them

    Exculpatory Agreements

        Releases

        Waivers

        Covenants Not to sue

    Who should be covered

    What should be included

        Negligence Clause

        Jurisdiction & Venue Clause

        Assumption of Risk

        Other Clauses

        Indemnification

            Hold Harmless Agreement

        Liquidated Damages

        Previous Experience

        Misc

            Photography release

            Video Disclaimer

            Drug and/or Alcohol clause

            Medical Transportation & Release

                HIPAA

        Problem Areas

    What the Courts do not want to see

Statute of Limitations

        Minors

        Adults

Defenses Myths

    Agreements to Participate

    Parental Consent Agreements

    Informed Consent Agreements

    Certification

    Accreditation

    Standards, Guidelines & Protocols

    License

Specific Occupational Risks

    Personal Liability of Instructors, Teachers & Educators

        College & University Issues

    Animal Operations, Packers

        Equine Activities

    Canoe Livery Operations

        Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

    Introduction for Risk Management Plans

    What Is A Risk Management Plan?

    What should be in a Risk Management Plan

    Risk Management Plan Template

    Ideas on Developing a Risk Management Plan

    Preparing your Business for Unknown Disasters

    Building Fire & Evacuation

Dealing with an Emergency

 

Insurance

    Theory of Insurance

    Insurance Companies

    Deductibles

    Self-Insured Retention

    Personal v. Commercial Policies

    Types of Policies

        Automobile

            Comprehension

            Collision

            Bodily Injury

            Property Damage

            Uninsured Motorist

            Personal Injury Protection

            Non-Owned Automobile

            Hired Car

    Fire Policy

        Coverage

        Liability

        Named Peril v. All Risk

    Commercial Policies

    Underwriting

    Exclusions

    Special Endorsements

    Rescue Reimbursement

    Policy Procedures

    Coverage’s

    Agents

    Brokers

        General Agents

        Captive Agents

    Types of Policies

        Claims Made

        Occurrence

    Claims

    Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

 


Decision supporting PA ski area when skier skied off the trail supported by the US Court of Appeals for the Third Circuit

The Federal District Court case, Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013 and reviewed in Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing was upheld

Citation: Vu v. Ski Liberty Operating Corp., (the decision is so new, not id numbers have been assigned to it yet.

State: Pennsylvania

Plaintiff: Quan Vu and his spouse May Siew

Defendant: Ski Liberty Operating Corp., doing business as Liberty Mountain Resort; Snow Time, Inc.

Plaintiff Claims: negligent for, among other things, failing to keep the slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the large rocks below and alleged loss of consortium

Defendant Defenses: No duty under the Pennsylvania Skier’s Responsibility Act (PSRA)

Holding: For the Defendant upholding the lower court decision

Year: 2019

Summary

A lower Federal District Court held that a skier assumed the risk when he skied off the trail and over a 3′-4′ embankment. The skier appealed and the Third Circuit Court of Appeals upheld the lower court holding the Pennsylvania Skier Responsibility Act created no duty on the part of the ski area.

Facts

On the evening of January 23, 2015, Vu was skiing down a trail at the Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a snowboarder, who “either cut [him] off or got awfully close” to him. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,” which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and landed among a pile of rocks. He suffered multiple serious injuries, which he alleges were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming practices.”

Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off of the slope, but she did find him laying off of the trail. She stated that to get to her father, she had to exercise caution due to the height difference between the artificial snow and the natural terrain. She also testified that she had no “difficulty that evening discerning the edge of the trail.”

Dawson Disotelle was also present on the slope and witnessed the incident. He testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s “skis went to the left and his body went with [them] and he just went straight off the run.” Thereafter, Disotelle attempted to render assistance to Vu, which required Disotelle to “hop[] down” to where Vu was laying. According to Disotelle, the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,” and “it wasn’t a challenge to get down there.” Like Vu’s daughter, Disotelle testified that he was able to “easily” distinguish the skiable trail from off trail.

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

The appellate court simply looked at the Pennsylvania Skiers Responsibility Act (PSRA) and found the ski area had no duty to the Plaintiff Vu.

The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport.” The no-duty rule applies in this context when: (1) the plaintiff was “engaged in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.” When both prongs are met, summary judgment is warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot recover for her injuries.”

The court did have to look at case law and commented on the fact the Pennsylvania act did not identify risks that were inherent in skiing like most other skier safety acts did. “The PSRA “is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing….”

The court identified several cases that held that “…snow and ice, elevation, contour, speed and weather conditions, and falling from a ski lift…” where inherent to skiing.

Nor does the PRSA require proof that a skier assumed the risk, only that the injury “arose from a “general risk” inherent to the sport….” Consequently, the court found the risk of skiing off the edge of the trail over a three to four feet drop was inherent to skiing.

Not only does this risk appear to fall under the umbrella of elevation or contour (or both), which have been identified by Pennsylvania courts as inherent risks, but also other courts have recognized the more general risk of skiing off a trail as inherent to downhill skiing,

The court then added as support for its finding that what the Plaintiff Vu encountered was an inherent risk but that Vu had been skiing for twenty years and was skiing black diamond runs or the most difficult slopes.

So Now What?

The Pennsylvania Skiers Responsibility Act is the weakest of most of the ski area statutes because it does not define what the inherent risks of skiing are. However, the courts in Pennsylvania have done a fairly good job of determining, based on case law and statutes from other states what are the inherent risks of skiing.

However, because the inherent risks are not defined, the plaintiffs are going to continue to test the issues because there is a chance they can win.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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Vu v. Ski Liberty Operating Corp.,

Vu v. Ski Liberty Operating Corp.,

Quan Vu; May Siew, Appellants

v.

Ski Liberty Operating Corp., doing business as Liberty Mountain Resort; Snow Time, Inc.

No. 18-1769

United States Court of Appeals, Third Circuit

February 12, 2019

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 22, 2019

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:16-cv-02170) District Judge: Hon. John E. Jones, III

Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ, Chief District Judge [+].

OPINION [*]

CHAGARES, CIRCUIT JUDGE.

Appellants Quan Vu and his spouse, May Siew (collectively, “the plaintiffs”), brought this action against the defendants, Ski Liberty Operating Corporation, d/b/a Liberty Mountain Resort and Snow Time, Inc., for damages relating to injuries Vu suffered while skiing at Liberty Mountain Resort. The defendants successfully moved for summary judgment, and the plaintiffs now appeal. Because we conclude that the plaintiffs’ cause of action is barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. Cons. Stat. § 7102(c) (“PSRA”), we will affirm.

I.

We write principally for the parties and therefore recite only those facts necessary to our decision. On the evening of January 23, 2015, Vu was skiing down a trail at the Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a snowboarder, who “either cut [him] off or got awfully close” to him. Appendix (“App.”) 314. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,” which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and landed among a pile of rocks. He suffered multiple serious injuries, which he alleges were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming practices.” Vu Br. 4.

Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off of the slope, but she did find him laying off of the trail. She stated that to get to her father, she had to exercise caution due to the height difference between the artificial snow and the natural terrain. She also testified that she had no “difficulty that evening discerning the edge of the trail.” App. 74-75.

Dawson Disotelle was also present on the slope and witnessed the incident. He testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s “skis went to the left and his body went with [them] and he just went straight off the run.” App. 124-25. Thereafter, Disotelle attempted to render assistance to Vu, which required Disotelle to “hop[] down” to where Vu was laying. App. 143. According to Disotelle, the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,” and “it wasn’t a challenge to get down there.” Id. Like Vu’s daughter, Disotelle testified that he was able to “easily” distinguish the skiable trail from off trail. App. 129.

The plaintiffs filed a two-count complaint in October 2016. The first count alleged that the defendants were negligent for, among other things, failing to keep the slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence or boundary marker to prevent skiers “from skiing over the edge and into the large rocks below.” App. 902-03. In the second count, Siew alleged loss of consortium.

The defendants moved for summary judgment, arguing in part that the plaintiffs’ action was barred because “skiing off trail and colliding into rocks . . . is an inherent risk” of downhill skiing. App. 784. The District Court agreed and granted the motion. The plaintiffs now appeal.

II.

The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the grant of summary judgment, Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 268 (3d Cir. 2008), and must ascertain whether the movant has “show[n] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In conducting this analysis, we “view the facts in the light most favorable to the non-moving party.” Bjorgung, 550 F.3d at 268.

III.

In this action based on diversity jurisdiction, we apply Pennsylvania law. See Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000). The statute upon which this case turns is the PSRA, which acknowledges that “there are inherent risks in the sport of downhill skiing,” 42 Pa. Cons. Stat. § 7102(c)(1), and, for that reason, “preserves assumption of risk as a defense to negligence suits stemming from downhill skiing injuries,” Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1007 (3d Cir. 1983).

The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010). The no-duty rule applies in this context when: (1) the plaintiff was “engaged in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.” Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). When both prongs are met, summary judgment is warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot recover for her injuries.” Id.

The PSRA “is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing,” Chepkevich, 2 A.3d at 1188 n.15, so we turn to caselaw for guidance. The Pennsylvania Supreme Court has identified collisions with other skiers, “snow and ice, elevation, contour, speed and weather conditions,” Hughes, 762 A.2d at 344, and falling from a ski lift, Chepkevich, 2 A.3d at 1188, as inherent risks. It has also instructed other courts to adopt “a practical and logical interpretation of what risks are inherent to the sport,” id. at 1187-88, and explained that invocation of the PSRA does not require proof that the injured skier assumed the “specific risk” that caused injury – only that the injury arose from a “general risk” inherent to the sport, id. at 1188.

Applying this guidance, we conclude that the plaintiffs’ action is barred by the PSRA. The plaintiffs do not dispute that the first prong – “engaged in the sport of downhill skiing,” Hughes, 762 A.2d at 344 – is met. Only the “inherent risk” prong is at issue on appeal, and it is also satisfied.

The risk identified by the plaintiffs as causing Vu’s injuries is skiing off of a trail edge that was three to four feet above the natural terrain, which we conclude is inherent to the sport of downhill skiing.[1] Cf. Smith-Wille v. Ski Shawnee, Inc., 35 Pa. D. & C. 5th 473, 475, 484 (Pa. Ct. Com. Pl. 2014) (holding, where a skier was injured after losing control on an icy slope and crashing into a fence running along the edge of a ski trail, that “[t]he edge of the ski slope . . . [is an] inherent risk[] of skiing,” as is “[s]triking a protective fence designating and protecting skiers from the edge of the trail”). Not only does this risk appear to fall under the umbrella of elevation or contour (or both), which have been identified by Pennsylvania courts as inherent risks, Hughes, 762 A.2d at 344, but also other courts have recognized the more general risk of skiing off a trail as inherent to downhill skiing, see Nutbrown v. Mount Cranmore, Inc., 671 A.2d 548, 553 (N.H. 1996) (holding that when “the chief cause of [the plaintiff’s] injuries” was the “quintessential risk . . . that a skier might lose control and ski off the trail,” he “may not recover against a ski area operator for resulting injuries”); cf. Bjorgung, 550 F.3d at 265, 269 (holding that the PSRA barred a competitive skier’s cause of action where he was injured after he skied into the woods off of a trail because the failure to set safety netting or “fix a race course in a way that minimizes the potential for the competitors to lose control” were inherent risks of ski racing).

Given “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself,” the District Court correctly concluded that skiing over a slope edge and leaving the trail is an inherent risk of downhill skiing from which the defendants had no duty to protect Vu. Chepkevich, 2 A.3d at 1187. That is particularly true because Vu – who had been skiing for more than twenty years as of January 2015 and could ski black diamond, or the “most difficult,” slopes, App. 908, 1025 – acknowledges “that downhill skiing is a dangerous, risk sport” and “that if he skied off trail, he could encounter trees[ and] rocks,” App. 909, 911, 1025, 1027, and because Vu’s daughter and Disotelle both testified that they had no trouble discerning the slope edge, and on trail from off trail, on January 23, 2015.

The plaintiffs unsuccessfully make four related arguments, which we briefly address. To begin, they make much of the fact that the elevation difference between the slope edge and the natural terrain “was not a naturally occurring condition” but rather the result of the defendants’ grooming or making artificial snow. Vu Br. 5. This distinction is of no import for two reasons. First, the PSRA is concerned with the general, not the specific, risk that allegedly caused injury. Chepkevich, 2 A.3d at 1188. The general risk at issue is skiing over a slope edge (natural or not) and encountering off-trail conditions. Second, the PSRA bars recovery not only for injuries due to naturally occurring conditions, but also for injuries due to any “common, frequent, and expected” risk. Id. at 1186. Indeed, it has been invoked to preclude actions relating to PVC piping on a fence, Smith-Wille, 35 Pa. D. & C. 5th at 484, snowmaking equipment, Glasser v. Seven Springs Mountain Resort, 6 Pa. D. & C. 5th 25, 29 (Pa. Ct. Com. Pl. 2008), aff’d, 986 A.2d 1290 (Pa. Super. Ct. 2009), a ski lift, Chepkevich, 2 A.3d at 1188, and “wheel ruts on a ski slope created by an ATV,” Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 980-81 (Pa. Super. Ct. 2018). Although none of those causes of injury are naturally occurring conditions, they were all found to be inherent risks of downhill skiing.

Second, the plaintiffs contend that the “unguarded existence” of this slope made of artificial snow “is a deviation from the standard of care in the skiing industry,” apparently attempting to invoke the exception to the no-duty rule explained in Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978). Vu Br. 14. Pursuant to Jones, although sports facilities and amusement parks have no duty to protect against inherent risks, a plaintiff may recover from one such establishment for injury caused by an inherent risk if she “introduces adequate evidence that the amusement facility . . . deviated in some relevant respect from established custom.” Jones, 394 A.2d at 550-51. The plaintiffs have not provided support for this assertion beyond their expert’s report, [2] which does not clearly identify any industry standard from which the defendants are supposed to have deviated, but instead merely asserts that they violated generally accepted practices within the industry.[3]

Third, the plaintiffs seem to assert that the District Court improperly resolved a disputed issue of material fact in the defendants’ favor because reasonable jurors could disagree whether a slope edge with a three to four-foot elevation difference is an inherent risk. We reject this argument because the record citation provided does not support the plaintiffs’ contention, and the cases upon which the plaintiffs rely are inapposite, one involving the application of Vermont law and the other (predating Hughes and Chepkevich) applying a no-duty standard different from the standard espoused in those two cases.

Fourth, the plaintiffs also contend that the legislative intent behind the PSRA could not have been to encourage “the creation of artificial, Defendant-made ‘cliffs’ along . . . trail edges.” Vu Br. 6. For all of the reasons already discussed, we reject this argument as well.

In sum, we conclude that the plaintiffs’ injuries were caused by risks inherent to downhill skiing, satisfying the second prong of the Hughes test. Because it is undisputed that Vu was “engaged in the sport of downhill skiing at the time of [his] injur[ies],” the first prong is also met, such that summary judgment in favor of the defendants was properly granted. Hughes, 762 A.2d at 344.

IV.

For the aforementioned reasons, we will affirm the judgment of the District Court.

Notes:

[+] The Honorable Juan Sánchez, Chief United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

[*]This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

[1] To the extent that the plaintiffs allege that Vu’s injuries resulted from his attempt to avoid a collision with a snowboarder, we conclude that that risk is also inherent to downhill skiing. See Hughes, 762 A.2d at 345.

[2] The defendants argue that the expert report is unsworn and therefore may not be considered on a motion for summary judgment. Given our conclusion, we need not address this contention.

[3] The plaintiffs also point to evidence of “other skiers being injured at [Liberty Mountain Resort] in the exact same manner” on other slopes during previous seasons. Vu Br. 11-12. Such evidence does not identify any industry custom or Liberty Mountain Resort’s deviation from it.


The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.

Plaintiff hit a snowcat and was severely injured when she was sucked under the tiller. Mammoth Mountain Ski Area was not liable because of the release and snowcats on the mountain are an inherent risk of skiing and snowboarding.

Willhide-Michiulis v. Mammoth Mt. Ski Area, LLC, 2018 Cal. App. Unpub. LEXIS 4363

State: California, Court of Appeal of California, Third Appellate District

Plaintiff: Kathleen Willhide-Michiulis et al (and her husband Bruno Michiulis)

Defendant: Mammoth Mountain Ski Area, LLC

Plaintiff Claims: negligence, gross negligence and loss of consortium

Defendant Defenses: Assumption of the risk and release

Holding: for the defendant ski area Mammoth Mt. Ski Area

Year: 2018

Summary

When skiing or snowboarding you assume the risk of seeing a snowcat grooming on the slopes in California. If you run into a snowcat and get sucked into the tiller you have no lawsuit against the ski area.

A snowcat at Mammoth Mountain Ski Area is a great big red slow-moving machine with flashing lights and sirens. They are hard to miss, so therefore they are something you assume the risk when on the slopes.

Facts

The injury suffered by the plaintiff and how it occurred is gruesome. She hit a snowcat while snowboarding and fell between the cat and the tiller. Before the cat could stop she was run over and entangled in the tiller eventually losing one leg and suffering multiple other injuries.

Plaintiff Kathleen Willhide-Michiulis was involved in a tragic snowboarding accident at Mammoth Mountain Ski Area. On her last run of the day, she collided with a snowcat pulling a snow-grooming tiller and got caught in the tiller. The accident resulted in the amputation of her left leg, several skull fractures and facial lacerations, among other serious injuries

The plaintiff was snowboarding on her last run of the night. She spotted the snow cat 150 feet ahead of her on the run. When she looked up again, she collided with the snowcat.

While Willhide-Michiulis rode down mambo, she was in control of her snowboard and traveling on the left side of the run. She saw the snowcat about 150 feet ahead of her on the trail. It was traveling downhill and in the middle of the run. Willhide-Michiulis initiated a “carve” to her left to go further to the left of the snowcat. When she looked up, the snowcat had “cut off her path” and she could not avoid a collision. Willhide-Michiulis hit the back-left corner of the snowcat and her board went into the gap between the tracks of the snowcat and the tiller. Willhide-Michiulis was then pulled into the tiller.

The defendant Mammoth Mountain Ski Area posted warning signs at the top and bottom of every run warning that snowcats and other vehicles may be on the runs. The season pass releases the plaintiff, and her husband signed also recognized the risk of snowcats and identified them as such.

Further, in Willhide-Michiulis’s season-pass agreement, she acknowledged she understood “the sport involves numerous risks including, but not limited to, the risks posed by variations in terrain and snow conditions, . . . unmarked obstacles, . . . devices, . . . and other hazards whether they are obvious or not. I also understand that the sport involves risks posed by loss of balance . . . and collisions with natural and man-made objects, including . . . snow making equipment, snowmobiles and other over-snow vehicles.

The trial court concluded the plaintiff assumed the risks of her injury and granted the ski area motion for summary judgment. The plaintiff appealed that decision, and this appellate decision is the result of that appeal.

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

The decision included a massive recounting of the facts of the case both before the analysis and throughout it. Additionally, the court reviewed several issues that are not that important here, whether the trial court properly dismissed the plaintiff’s expert opinions and whether or not the location of the case was proper.

Releases in California are evolving into proof of express assumption of the risk. The court reviewed the issues of whether Mammoth met is burden of showing the risks the plaintiff assumed were inherent in the sport of snowboarding. The facts in the release signed by the plaintiff supported that assumption of the risk defense and was pointed out by the court as such.

…plaintiffs signed a season-pass agreement, which included a term releasing Mammoth from liability “for any damage, injury or death . . . arising from participation in the sport or use of the facilities at Mammoth regardless of cause, including the ALLEGED NEGLIGENCE of Mammoth.” The agreement also contained a paragraph describing the sport as dangerous and involving risks “posed by loss of balance, loss of control, falling, sliding, collisions with other skiers or snowboarders and collisions with natural and man-made objects, including trees, rocks, fences, posts, lift towers, snow making equipment, snowmobiles and other over-snow vehicles.”

California courts also look at the assumption of risk issue not as a defense, but a doctrine that releases the defendant of its duty to the plaintiff.

“While often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case.” Express assumption of risk agreements are analogous to the implied primary assumption of risk doctrine. “The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.””

The court then is not instructed to look at the activity to see the relationship of the parties or examine the activity that caused the plaintiff’s injuries. The question becomes is the risk of injury the plaintiff suffered inherent in the activity in which the plaintiff was participating. The issue then becomes a question solely for the courts as in this case, does the scope of the release express the risk relieving the defendant of any duty to the plaintiff.

After the judge makes that decision then the question of whether or not the actions of the defendant rose to the level of gross negligence is reviewed. “The issue we must determine here is whether, with all facts and inferences construed in plaintiffs’ favor, Mammoth’s conduct could be found to constitute gross negligence.

Ordinary or simple negligence is a “failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”

“‘”[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,”‘ amounts to ordinary negligence. However, to support a theory of ‘”[g]ross negligence,”‘ a plaintiff must allege facts showing ‘either a “‘”want of even scant care”‘” or “‘”an extreme departure from the ordinary standard of conduct.”‘”[G]ross negligence’ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. . . .”‘”

When looking at gross negligence, the nature of the sport comes back into the evaluation.

“‘[A] purveyor of recreational activities owes a duty to a patron not to increase the risks inherent in the activity in which the patron has paid to engage.'” Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.

Skiing and snowboarding have a long list of litigated risks that are inherent in the sport and thus assumed by the plaintiff or better, to which the defendant does not owe the plaintiff a duty.

There the plaintiff argued the snow groomer was not an assumed risk. The court eliminated that argument by pointing out the plaintiff had signed a release which pointed out to the plaintiff that one of the risks she could encounter was a snow groomer on the slopes.

The main problem with plaintiffs’ argument that common law has not recognized collisions with snow-grooming equipment as an inherent risk of skiing, is that plaintiffs’ season-pass agreement did. When signing their season-pass agreement, both Willhide-Michiulis and her husband acknowledged that skiing involved the risk of colliding with “over-snow vehicles.” Willhide-Michiulis testified she read the agreement but did not know an “over-snow vehicle” included a snowcat. Plaintiffs, however, did not argue in the trial court or now on appeal that this term is ambiguous or that the parties did not contemplate collisions with snowcats as a risk of snowboarding. “Over-snow vehicles” is listed in the contract along with “snow making equipment” and “snowmobiles,” indicating a clear intent to include any vehicle used by Mammoth for snow maintenance and snow travel.

The court went on to find case law that supported the defense that snow groomers were a risk of skiing and boarding, and it was a great big slow moving bright-red machine that made it generally unavoidable.

Further, the snowcat Willhide-Michiulis collided with is large, bright red, and slow-moving, making it generally avoidable by those around it. Indeed, Willhide-Michiulis testified that she saw the snowcat about 150 feet before she collided with it. Although she claims the snowcat cut off her path, the snowcat was traveling less than ten miles an hour before standing nearly motionless while turning onto Old Boneyard Road downhill from Willhide- Michiulis.

Even if there were no warning signs, nothing on the maps of the ski area, nothing in the release, once the plaintiff spotted the snowcat the responsibility to avoid the snowcat fell on her.

The appellate court upheld the trial courts motion for summary judgement in favor of the defendant ski area Mammoth Mountain.

So Now What?

The California Appellate Court took 11 pages to tell the plaintiff if you see a big red slow-moving machine on the ski slopes to stay away from it.

What is also interesting is the evolution of the law in California from a release being a contractual pre-injury agreement not to sue to proof that the defendant did not owe a duty to the plaintiff because she assumed the risk.

Besides, how do you miss, let alone ski or snowboard into a big red slow-moving machine with flashing lights and sirens on a ski slope?

What do you think? Leave a comment.

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