When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
Posted: November 3, 2014 Filed under: Illinois, Skiing / Snow Boarding | Tags: Binding Release Setting, DIN, Inc., Ski, Ski binding, skiing, tibial plateau fracture, Viking Ski Shop Leave a commentSkier whose bindings did not release and possibly were set to high, could not prove that if his bindings did release he would not have suffered his injury.
Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684
State: Illinois
Plaintiff: Matthew Mack
Defendant: Viking Ski Shop, Inc. & Salomon North America, Inc.
Plaintiff Claims: defendant failed to make a reasonable inspection before selling the ski equipment to plaintiff, defendant failed to properly adjust the ski equipment, specifically the bindings, to plaintiff’s height, weight, and ski type.
Defendant Defenses: No proximate causation
Holding: for the defendants
Year: 2014
Remember there are four steps (in most states) to prove negligence.
· Duty
· Breach of the Duty
· Injury
· Proximate causation
Each of these points must be proven to hold a defendant negligent.
In this case, the plaintiff purchased skis, boots and bindings in Illinois before going skiing in Colorado. While skiing he fell suffering a knee injury, a tibial plateau fracture. The plaintiff’s bindings did not release during the fall. The plaintiff returned to Illinois and sued the shop that mounted his bindings and the binding manufacturer.
The plaintiff argued that the ski shop that mounted his bindings mounted them for a Type III skier, and he was a Type II skier. The ski industry has developed a skier identification program to determine a skier’s ability level. (See http://www.dinsetting.com/ for information on the different skier levels.) The better the skier the higher the skier identification on a scale of 1 to 3. A better skier has a higher DIN setting or the harder, more pressure needed, to release the ski boot from the binding.
The plaintiff hired an expert who testified that in his opinion, the binding DIN was too high. The defendant hired two experts who stated that if the DIN setting were too high, it still would not have mattered. The pressure needed to release the boot at either DIN setting, Skier Type II or Type III was greater than the pressure that would cause his injury.
The trial court agreed and dismissed the case based on motions of the defendant, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The appellate court reiterated the requirements to win a negligence case. Illinois has adopted a three-step approach to proving negligence, basically combining steps 3 and 4 into one step.
In order to recover damages based upon a defendant’s alleged negligence, a plaintiff must prove that (1) the defendant owed the plaintiff a duty; (2) that the defendant breached the duty; and (3) that the breach was the proximate cause of the plaintiff’s injuries.
The court then looked at the requirements to prove proximate cause. Proximate cause has a fact component and a legal component. The factual component is determined by a “but for” test. “Cause, in fact, is established if the occurrence would not have happened “but for” the conduct of the defendant.”
Legal cause is based on foreseeability.
Legal cause, by contrast, is largely a question of foreseeability, and the relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. Furthermore, proximate cause must be established to a reasonable certainty and may not be based upon mere speculation, guess, surmise or conjecture.
Foreseeability is a difficult legal definition to the non-legal definition can suffice to understand the issues. Could the defendant have thought about the chances of something happening and was that more than mere speculation. Was it something that more than mere speculation could have brought to the speculation of the defendant.
Here the facts still fell below foreseeable. Even if the defendant was negligent and set the bindings incorrectly, the injury would have still occurred. Consequently, the cause, bindings set incorrectly, was not proximate to the injury.
In addition, even if we take Leffe’s testimony as true that defendants incorrectly set plaintiff’s bindings too high for his skier preference, plaintiff still fails to provide substantial evidence that if his bindings were at a lower setting his injury would not have occurred.
The appellate court upheld the trial court’s dismissal of the case.
So Now What?
This case was one because the defense team understood the factual and legal issues of the case and based on facts alone, proved the defendant was not liable. Having an attorney willing to take the time to understand and investigate all of the issues and an insurance company willing to pay for that time will allow the defendant in an outdoor recreation case to win 99% of the time.
Here the defense team kept asking questions until they fully understood the issues. The pressure needed to create a tibial plateau fracture was less than the binding release setting.
Hire a good attorney and take the time to educate your attorney in the facts of your case. Take them down the river, up the mountain or around the mountain on a mountain bike, so they understand all aspects of your business, what the plaintiff experienced and the particulars of your case.
Spend the money to equipment your attorney with a complete set of the equipment at issue in the case. Make sure they understand a forward stroke, a munter hitch and an ascender, or any other equipment at issue in the case. Have them play with the equipment, putting on the harness, releasing a boot from a binding or attaching a PFD until they understand all facets of the equipment.
Then your lawyer can investigate the case to use the best defense available for you.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Tibial Plateau Fracture, Ski Binding, Binding Release Setting, DIN, Skiing, Ski, Viking Ski Shop, Inc.,
2013-2014 In bound ski/board fatalities
Posted: April 30, 2014 Filed under: Ski Area | Tags: Aspen, Crystal Mountain Resort, fatality, Heavenly Resort, Killington, Mount Bachelor, Mount Charleston, Norwood, Resort, Ski, Ski Apache, ski area, Ski Bluewood, Ski Resort, Skier, Snowboard, Snowboarder, Sports, Stratton Mountain Resort, Sugarbush Ski Resort, Sugarloaf, Telluride, United States, Whitefish Mountain Resort, Winter Park, Winter sport, winter sports Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of March 10, 2014. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Are non-skiing/boarding fatalities that occurred inbounds on the slopes
Fatality while sledding at the Resort is in Green
2013 – 2014 Ski Season Fatalities
| Date | State | Resort | Where | Trail Difficulty | How | Cause | Ski/ Board | Age | Sex | Home | Helmet | Ref | Ref |
| 12/11 | CO | Telluride | Pick’NGad | struck a tree | 60 | M | Norwood CO | No | http://rec-law.us/190al75 | http://rec-law.us/1fchteM | |||
| 12/12 | VT | Killington | Great Northern Trail | Found | 21 | F | PA | No | http://rec-law.us/1csgWCg | ||||
| 12/16 | WA | Crystal Mountain Resort | Tinkerbell | Beginner | Lost control and veered off the trail | Blunt Force Trauma | F | Yes | http://rec-law.us/Jc4MX3 | ||||
| 1/1 | WV | skiing into a tree | M | Opp, AL | http://rec-law.us/1a6nAkQ | ||||||||
| 12/19 | CO | Winter Park | Butch’s Breezeway | Beginner | blunt force injury to the head | 19 | M | Yes | http://rec-law.us/1f3ekSy | ||||
| 12/21 | CA | Heavenly Resort | colliding with a snowboarder and being knocked into a tree | 56 | F | NV | No | http://rec-law.us/JRiP4c | http://rec-law.us/1a7REMW | ||||
| 1/11 | CO | Aspen | Belisimo | Intermediate | hitting a tree | Skier | 56 | M | CO | Yes | http://rec-law.us/1hNbHoz | http://rec-law.us/JTr7sY | |
| 1/11 | MT | Whitefish Mountain Resort | Gray Wolf and Bighorn | Found in a tree well | Skier | 54 | M | CA | http://rec-law.us/1kx1deP | ||||
| 1/11 | VT | Stratton Mountain Resort | Lower Tamarac | Sledding | Sledding | 45 | M | NJ | No | http://rec-law.us/19x4mXb | http://rec-law.us/1aRlxS5 | ||
| 1/14 | NV | Mount Charlteston | Terrain Park | Fall in Terrain Park | Blunt Force Trauma | Boarder | 20 | M | NV | No | http://rec-law.us/1dsDW8B | http://rec-law.us/1dyT1Hc | |
| 1/17 | VT | Killington | Mouse Trap Trail | Striking a tree | Boarder | 23 | M | NY | http://rec-law.us/1dFfY9j | http://rec-law.us/1dKUf0v | |||
| 1/25 | NM | Ski Apache | Intermediate | Struck a Tree | Skier | 23 | F | TX | http://rec-law.us/1n3PCCM | http://rec-law.us/M5qA85 | |||
| 1/25 | WA | Ski Bluewood | Country Road run | Beginner | Found at top of trail | blunt force abdominal injury | Skier | 14 | M | WA | No | http://rec-law.us/1eaGBUM | http://rec-law.us/1b4oewr |
| 1/28 | UT | Deer Valley | Keno Ski Run | Intermediate | hit a tree | Skier | 65 | M | FL | Yes | http://rec-law.us/1eg70Ax | http://rec-law.us/1hRbIVm | |
| 2/1 | VT | Sugarbush Ski Resort | Lower Rim Run and Lower FIS trails | went off the trail and hit a trail sign | broken neck | Skier | 19 | F | http://rec-law.us/1aeVJ3V | http://rec-law.us/1j4jIpF | |||
| 2/4 | ME | Sugarloaf resort | Hayburner | Expert | skiing off a trail into trees | Skier | 21 | M | NY | Yes | http://rec-law.us/1fQtrMz | http://rec-law.us/1b1OkG0 | |
| 2/4 | CA | Heavenly Ski resort | upper Nevada Woods | Expert | Closed area | blunt force trauma | Boarder | 18 | M | Kings Beach, CA | Yes | http://rec-law.us/1byr68d | http://rec-law.us/1b5exDA |
| 2/7 | CO | Beaver Creek | lower section of Beaver Creek | suffered trauma injuries | Skier | 64 | M | St Louis, Mo | http://rec-law.us/1ns4Hvu | ||||
| 2/8 | CO | Keystone Ski Area | Porcupine and Bighorn | Intermediate | crashed into a tree | blunt-force trauma | Skier | 46 | M | Yes | http://rec-law.us/Nph8Oa | ||
| 2/16 | MT | Whitefish Mtn Resort | between Hollwood & Silvertip | fell into treewell | Skier | 48 | M | Calgary, Alberta | http://rec-law.us/1nKj8eh | http://rec-law.us/1clTCu3 | |||
| 2/17 | WA | Stevens Pass | Corona Bowl | Expert | hit head on rock | major trauma | Boarder | 31 | M | No | http://rec-law.us/O48FQH | http://rec-law.us/1oRNQFT | |
| 2/18 | VT | Stowe | Upper Gondolier | hit another skier before sliding into trail sign | Skier | 30 | M | Brooklyn, NY | Yes | http://rec-law.us/1fkn5pt | |||
| 2/19 | WA | Crystal Mountain | Found in tree well | Boarder | 35 | M | Seattle, WA | http://rec-law.us/1ffs2kY | |||||
| 3/5 | PA | Heavenly Valley | collided with a tree | internal bleeding from blunt-force trauma | Boarder | 21 | M | Warren, PA | Yes | http://rec-law.us/PRTn2a | http://rec-law.us/1k4m72J | ||
| 3/10 | CO | Copper Mountain | Vein Glory | Beginner | striking a tree | Boarder | 22 | M | Denver, CO | No | http://rec-law.us/1kJvtTc | ||
| 3/16 | NY | Whiteface Mountain | trail and hit a tree | Boarder | 22 | M | Hemlock, NY | http://rec-law.us/1gFq34F | http://rec-law.us/1mfoli0 | ||||
| 3/18 | CO | Snowmass | Gunner’s View trail | intermediate | collided with a tree | hemorrhagic shock due to pelvic trauma | Boarder | 54 | M | Germany | Yes | http://rec-law.us/OAM3Hn | |
| 3/21 | WA | Mission Ridge Ski & Board Resort | Kiwa run | ski dislodged from its binding | Ski | 47 | M | Seattle, WA | http://rec-law.us/1jreZv1 | ||||
| 3/22 | VT | Stratton Mountain Ski Resort | 91 Trail | Veered off the trial & crashed into a sign | boarding | 16 | M | Boston, MA | http://rec-law.us/1jBxxIX | http://rec-law.us/1oZzuSX | |||
| 3/27 | CO | Keystone Resort | intermediate | lost control & hit a tree | blunt force trauma | Skier | 60 | M | Charlotte, NC | Yes | http://rec-law.us/1dV5lgV | http://rec-law.us/O6FJ9R | |
| 3/28 | CO | Snowmass | Elk Camp Chairlift at the top of Sandy Park | collision with another skier that led to Cohen hitting a tree | multiple injuries | Skier | 45 | M | Cincinnati, OH | Yes | http://rec-law.us/1dHi0co | http://rec-law.us/1dHi0co | |
| 4/1 | WY | Jackson Hole | Pair-a-Chutes ( The Parachutes) | collided with a tree | significant body trauma | Skier | 31 | M | Jackson Hole, WY & PA | http://rec-law.us/1dN158G | http://rec-law.us/1ebWibv | ||
| 4/3 | CO | Snowmass | Cirque Headwall | multiple chest injuries | Skier | 47 | M | Yes | http://rec-law.us/PyekPa | http://rec-law.us/1lA1H1g | |||
| 4/6 | CA | Northstar | Rail Splitter | Advanced | crashing into a tree | Skier | 67 | M | Van Nuys, CA | Yes | http://rec-law.us/1fWUnLK | ||
| 4/6 | NY | Lake Placid | Excelsior | lost control and struck a tree | Boarder | 22 | M | Canandaigua, NY | No | http://rec-law.us/PG1Hls | http://rec-law.us/1mUlNpW |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
If you are unable to view the entire table click on the
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Have you read your health and life policy to see if your activities are excluded. This travel insurance policy excluded mountaineering and skiing
Posted: February 17, 2014 Filed under: Contract, Insurance, Mountaineering, Skiing / Snow Boarding, Wisconsin | Tags: Ambiguous, Exclusion, Grand Teton, Grand Teton National Park, Grand Teton National Policy, Health insurance, Health Insurance Policy, Insurance, Insurance policy, Mountaineering, Policy Exclusion, Ski, Ski Area Boundary, Ski Mountaineering, Ski Resort, skiing, Travel insurance Leave a commentFirst this case defines mountaineering, legally! The court carefully picked its way through the language of the policy to keep the injured plaintiff in the lawsuit a little longer. That probably means the insurance company settled the case rather than spend more money fighting, but that is only speculation.
Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089
Date of the Decision: January 15, 2014
Plaintiff: Ryan M. Redmond
Defendant: Sirius International Insurance Corporation
Plaintiff Claims: breach of contract and insurance bad faith
Defendant Defenses: the contract
Holding: Cross motions for summary judgment denied, case headed for trial
The plaintiff in this case when ski mountaineering in Grand Teton National Park. Half way up Ellingwood Couloir, the plaintiff and a friend stopped climbing and started to ski down. Two other friends proceeded up the couloir. The plaintiff fell, tumbling down the mountain. He was eventually airlifted from the park.
The plaintiff had purchased a travel policy. The insurance company that issued the travel policy, relying upon the exclusions in the policy, denied coverage for the plaintiff’s injuries. The plaintiff and the defendant insurance company filed motions for summary judgment covering multiple issues, including a dismissal of the case due to the policy exclusions.
Summary of the case
The policy exclusions stated:
All charges, costs, expenses and/or claims (collectively “Charges”) incurred by the Insured Person and directly or indirectly relating to or arising from or in connection with any of the following acts …:
* * *
(11) Charges incurred for any surgery, Treatment or supplies relating to, arising from or in connection with, for, or as a result of:
* * *
(d) any Injury or Illness sustained while taking part in mountaineering activities where specialized climbing equipment, ropes or guides are normally or reasonably should have been used, Amateur Athletics, Professional Athletics, aviation (except when traveling solely as a passenger in a commercial aircraft), hang gliding and parachuting, snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body), racing of any kind including by horse, motor vehicle (of any type) or motorcycle, spelunking, and subaqua pursuits involving underwater breathing apparatus (except as otherwise expressly set forth in Section Q. Recreational Underwater Activities). Practice or training in preparation for any excluded activity which results in injury will be considered as activity while taking part in such activity; and/or
(e) any Illness or Injury sustained while participating in any sporting, recreational or ad-venture activity where such activity is undertaken against the advice or direction of any local authority or any qualified instructor or contrary to the rules, recommendations and procedures of a recognized governing body for the sport or activity….
Basically the policy attempted to exclude recreational activities except skiing at a ski area.
The court first looked at the requirements for either party to win a motion for summary judgment. Similar in most courts in most cases.
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A material fact is one that might affect the outcome of the case, and a nonmoving party’s dispute is “genuine” only if a reasonable finder of fact could find in the nonmoving party’s favor at trial. The court views the facts in the light most favorable to the non-moving party, and likewise it draws all inferences in the non-movant’s favor. The court may not weigh the evidence or make credibility determinations. Thus, the nonmoving party will defeat a motion for summary judgment if it is able to produce admissible evidence that, when viewed in the most favorable light, would be sufficient to enable the finder of fact to return a verdict in its favor.
The court then looked at the requirements on interpreting an insurance policy. Insurance policies are contracts and must meet all contract requirements. Insurance policies in many states also have to meet specific requirements and have different ways of interpreting some specific insurance issues. In Wisconsin policies are interpreted as a contract first.
“An insurance policy is a contract, and as such is subject to the same rules of construction as other contracts.” Because contract interpretation is primarily a question of law, it is a matter that is generally well-suited for summary judgment. “When interpreting an insurance contract courts must look at the contract as a whole.” In construing an insurance contract, the court should do “so as not to render any words, phrases, or terms ineffective or meaningless.” Terms should be given their plain and ordinary meaning. In determining the “plain and ordinary meaning” of a term, courts will frequently turn to dictionaries.
However, if a provision of an insurance contract is ambiguous, it is to be construed strictly against the insurer. An insurance contract is not ambiguous simply because parties each have their own interpretation of a provision. Rather, “[a]n insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.”
Construction against the author of a contract is a common occurrence in the law. The party that drafts the contract is the party that loses if the court is faced with a situation where the exact intention of the language is not clear. Instead of tossing a coin, the writer of the contract loses.
The court looked at the exclusion language above to determine if the activity of climbing up a couloir and skiing down is mountain climbing.
First the court determined that mountaineering did not encompass the action of skiing down the mountain. When in doubt in defining words courts use dictionaries.
The Oxford English Dictionary defines “mountaineering” as, “The action or sport of climbing mountains.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/239554.
Merriam-Webster similarly defines it as “the sport or technique of scaling mountains.” Merriam-Webster, (January 15, 2014), http://www.merriam-webster.com/dictionary/mountaineering.
The definition within the American Heritage Dictionary states, “The climbing of mountains, especially using special equipment and techniques on rock, ice, or snow.
Also called mountain climbing.” American Heritage Dictionary, (January 15, 2014), http://www.ahdictionary.com/word/search.html?q=mountaineering.
The definitions all defined mountaineering as climbing and climbing means going up. However, the court also found that:
Thus, if “mountaineering” is defined by reference to “climbing” and climbing can denote either ascent or descent, then necessarily, “mountaineering” must include both ascent and descent. The court finds this understanding of mountaineering to be the only logical definition. After all, in the context of mountaineering, the proverb “What goes up, must come down,” is generally literally true.
The next issue then if skiing down was not mountaineering and excluded, was the issue, whether the activity which injured the plaintiff violated the ski terms of the policy. The court then had to consider if skiing in a couloir in a national park is skiing out of bounds. The defendant argued that ski mountaineering was encompassed by the term mountaineering. However, the court did not agree. “The court also rejects the defendant’s contention that the mountaineering exclusion encompasses “ski mountaineering,” which the defendant characterizes as a subset of mountaineering.”
The plaintiff argued that ski mountaineering required the use of ropes and other specialized equipment. The court found that the term mountaineering did not encompass ski mountaineering.
Thank heavens for us; the court did not accept either of these definitions.
The next issue was whether or not the acts of the plaintiff fell within the exclusions in the policy concerning skiing. The court reviewed the policy and the skiing exclusion and defined the exclusion this way.
This provision, moving back and forth between coverage and exclusions, is far from a model of clarity. It first excludes coverage for injuries sustained while snow skiing but then immediately excludes from the exclusion (and thus covers) injuries sustained while “recreational downhill and/or cross country snow skiing,” and then adds a parenthetical to now exclude from the exclusion to the exclusion (and thus deny coverage for) injuries sustained while “skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body.” The net effect of this provision is that injuries sustained as a result of recreational snow skiing are covered provided the skiing was not unlawful, against the advice of certain entities, or “away from prepared and marked in-bound territories.”
(You always wondered what someone learns in law school. You learn to read policy exclusions and then interpret them as explained above. The court found the language in the policy: “This provision, moving back and forth between coverage and exclusions, is far from a model of clarity.”)
The plaintiff argued that he was skiing in an area allowed by the insurance policy because anywhere within Grand Teton National Park was allowed to be skied, and he did not leave the park boundary. Inbounds meaning in the National Park. The court then looked at other aspects of the policy to determine what was meant.
“Recreational” is not ambiguous. It is readily understood as, “An activity or pastime which is pursued for the pleasure or interest it provides.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/159954.
There is no evidence that Redmond was skiing for any purpose other than the pure pleasure or interest the sport provides, and thus the court concludes that Redmond’s skiing on the day of his injury was recreational.
Thus, competitive or commercial skiing likely would not be covered under the policy.
The net effect of the review was the court could not determine if the actions of the plaintiff were excluded by the policy. The definitions the court used and defined in making this determination do have value.
…Redmond [plaintiff] was skiing away from prepared and marked in-bound territories, this plainly encompasses more than simply skiing in an area where skiing is not barred. Thus, having concluded that “away from” means roughly “outside of,” restating this exclusion as a positive question, the issue before the court becomes, “Was Redmond skiing in a prepared and marked in-bound territory when he was injured?” Only if he was would the policy possibly afford coverage for his injures.
The court then looking at the overview of skiing could not determine what the terms in the skiing exclusion meant.
The court presumes that if a ski area is bordered on the sides by signs and ropes demarcating the boundaries of the permissible skiing area, it is likely “marked” within the scope of the policy. But is this the only kind of identification that will render an area “marked?” What if the area is depicted on a map that includes boundary lines indicating the recommended areas for skiing? If markings on a map are sufficient, who must prepare such a map to render the area marked? Must the map be prepared by the entity in charge of the area, e.g. the National Park Service, or would a map prepared by a person with special knowledge of the area suffice? Or must the markings even relate to the in-bound territories? Would a sign in the vicinity of the mountain stating “Ski at your own risk,” suffice as a marking? Perhaps there are many other plausible understandings of this term.
The court finally determined that the terms “prepared” and “marked” were not defined adequately in the policy. Therefore, the policy was ambiguous. The court could not grant the defendant’s motion for summary judgment. That issue was left for a jury to decide.
The case went on for multiple pages discussing all the motions filed by each side. This issue was the only one of importance.
So Now What?
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created this exclusion in health insurance policies. The exclusion is legal, but up to an insurance company to enact and place its policies. Several attempts have been made since HIPAA was enacted to correct this issue; however, all have died in committee.
Simply put the court worked hard to determine a way the plaintiff would have insurance. The simple term “ski area,” added to the definition of skiing would have made the purpose of the lawsuit irrelevant. Obviously, the ski area description was solely for skiing inbounds not in a park.
If you enjoy recreating in the outdoors, make sure that you have the insurance coverage you believe you are paying for. Read your policy or find someone who can read it for you. An insurance policy is more than something to read when you can’t get to sleep at night.
What do you think? Leave a comment.
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2013-2014 In bound ski/board fatalities
Posted: February 12, 2014 Filed under: Avalanche, Ski Area, Skiing / Snow Boarding | Tags: Aspen, Blunt trauma, Crystal Mountain Resort, fatality, Heavenly Resort, Killington, Mount Charleston, Opp Alabama, Resort, Ski, Ski Apache, ski area, Ski Bluewood, Skier, Sledding, Snowboard, Snowboarder, Stratton Mountain Resort, Sugarloaf, Telluride, Whitefish Mountain Resort, Winter Park Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of February 10, 2014. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Are non-skiing/boarding fatalities that occurred inbounds on the slopes
Fatality while sledding at the Resort is in Green
2013 – 2014 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
12/11 | CO | Telluride | Pick’N Gad | Left the ski run, struck a tree and suffered fatal injuries | 60 | M | Norwood, CO | No | http://rec-law.us/190al75 | http://rec-law.us/1fchteM | |||
|
2 |
12/12 | VT | Killington | Great Northern Trail | Found | 21 | F | PA | No | http://rec-law.us/1csgWCg | ||||
|
3 |
12/16 | WA | Crystal Mountain Resort | Tinkerbell | Beginner | Lost control and veered off the trail | Blunt Force Trauma | F | Yes | http://rec-law.us/Jc4MX3 | ||||
| 4 | 1/1/14 | WV | skiing into a tree | M | Opp, AL | http://rec-law.us/1a6nAkQ | ||||||||
| 5 | 12/21 | CA | Heavenly Resort | colliding with a snowboarder and being knocked into a tree | 56 | F | NV | No | http://rec-law.us/JRiP4c | http://rec-law.us/1a7REMW | ||||
| 6 | 12/19 | CO | Winter Park | Butch’s Breezeway | Beginner | blunt force injury to the head | 19 | M | Yes | http://rec-law.us/1f3ekSy | ||||
| 7 | 1/11 | CO | Aspen | Bellisimo | Inter | hitting a tree | Ski | 56 | M | CO | Yes | http://rec-law.us/1hNbHoz | http://rec-law.us/JTr7sY | |
| 8 | 1/11 | MT | Whitefish Mountain Resort | Gray Wolf and Bighorn | Found in a tree well | Ski | 54 | M | CA | http://rec-law.us/1kx1deP | ||||
| 9 | 1/11 | VT | Stratton Mountain Resort | Lower Tamarac | Sledding | Sledding | 45 | M | NJ | No | http://rec-law.us/19x4mXb | http://rec-law.us/1aRlxS5 | ||
| 10 | 1/14 | NV | Mount Charleston | Terrain Park | Fall in terrain park | blunt-force trauma | Boarder | 20 | M | NV | No | http://rec-law.us/1dsDW8B | http://rec-law.us/1dyT1Hc | |
| 11 | 1/17 | VT | Killington | Mouse Trap Trail | striking a tree | Boarder | 23 | M | NY | http://rec-law.us/1dFfY9j | http://rec-law.us/1dKUf0v | |||
| 12 | 1/25 | NM | Ski Apache | Inter | struck a tree | Skier | 23 | F | TX | http://rec-law.us/1n3PCCM | http://rec-law.us/M5qA85 | |||
| 13 | 1/25 | WA | Ski Bluewood | Country Road run | Beginner | Found at top of trail | blunt force abdominal injury | Skier | 14 | M | WA | No | http://rec-law.us/1eaGBUM | http://rec-law.us/1b4oewr |
| 14 | 1/28 | UT | Deer Valley | Keno ski run | Inter | hit a tree | Skier | 65 | M | FL | Yes | http://rec-law.us/1eg70Ax | http://rec-law.us/1hRbIVm | |
| 15 | 2/1 | VT | Sugarbush Ski Resort | Lower Rim Run and Lower FIS trails | went off the trail and hit a trail sign | broken neck | Skier | 19 | F | Newport, RI | http://rec-law.us/1aeVJ3V | http://rec-law.us/1j4jIpF | ||
| 16 | 2/4 | ME | Sugarloaf resort | Hayburner | Expert | skiing off a trail into trees | Skier | 21 | M | Hoosick Falls, NY | No | http://rec-law.us/1fQtrMz | http://rec-law.us/1b1OkG0 | |
| 17 | 2/4 | CA | Heavenly Ski Resort | upper Nevada Woods | Expert | Closed area | blunt force trauma | Boarder | 18 | M | Kings Beach, CA | Yes | http://rec-law.us/1byr68d | http://rec-law.us/1b5exDA |
| 18 | 2/8 | CO | Keystone Resort | Porcupine and Bighorn | Intermediate | crashed into a tree | blunt-force trauma | Skier | 46 | M | Yes | http://rec-law.us/Nph8Oa | ||
| 19 | 1/31 | PA | Seven Springs Mountain Resort | hit a fence | closed-head injury and a cervical spine fracture | Skier | 52 | F | Westmoreland County, PA | http://rec-law.us/1lWLt5C | http://rec-law.us/1h4zhOc | |||
| 20 | 2/7 | CO | Beaver Creek | lower section of Beaver Creek | suffered trauma injuries | Skier | 64 | M | St. Louis, Mo | http://rec-law.us/1ns4Hvu |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.
What do you think? Leave a comment.
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Canadian judge holds “ski buddy” not liable for death of skier. Buddies assigned by guide in Helicopter on way out does not create a contract
Posted: February 3, 2014 Filed under: Skiing / Snow Boarding | Tags: BC, British Columbia, Canada, Duty of care, Heli Ski, Revelstoke, Ski, Ski Buddy, Ski Resort, Tree Well, Wiegele Helicopter Skiing 5 CommentsThe court found there was no contract between ski buddies, and the defendant skier met his duties to the deceased skier. A tree well is a risk of skiing, and no other skier could have done more than alert the guides when a skier was missing.
The deceased died in a tree well on a helicopter ski trip in Canada. His widow sued his ski buddy for his death claiming he was a“… contractually obligated to stay close to her husband, keep him in sight, and assist or alert guides and other skiers if he observed his buddy in need of assistance.”
The entire concept of a ski buddy is fraught with spatial issues. Rarely do people ski side by side. If you are skiing side by side, both skiers can only occasionally glance downhill. Here, the facts and allegations of the plaintiff argue that the defendant should have skied behind the deceased to keep an eye on him. Would that have not placed the deceased in the same liability position with the defendant?
How do you ski through deep powder and trees and keep an eye on someone’s 100% of the time. Even if you do, how do two people do this for each other? It is physically impossible.
The next issue is normally one guide skis in front of the group and the second guide skis at the rear. No matter what, the time it would take to notify any guide either by waiting and hoping the second guide finds you or by skiing to the bottom guide, which did occur, is lengthy. The heli-ski operator told skiers to stop and yell if they got into trouble?
The most telling part of this article is the deceased was a successful personal injury attorney.
You can find the judge’s ruling dismissing the case here. The facts of the case as set out in the judge’s ruling led to the idea that there was no requirement to ski with a buddy at the time of the fatality. The buddy requirement ended when the group exited from the forest into a logged area. Everyone descended together at that point, and generally, no one tracks anyone else.
This is a Canadian legal decision and the decision, although well written was confusing because Canadian law is different from US law. My analysis may be incorrect in all aspects of the court’s decision. As an example, here is the court’s definition of standard of care in negligence.
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.
Rarely, in US law, is the phrase unreasonable risk of harm used to define negligence.
The court’s statement of the facts also shows a surprisingly quick search and location of the deceased. It took only 4 minutes, based on the radio log between when the search started and when the deceased was found.
The plaintiff argued that the defendant ski buddy owed a duty of care to the deceased by voluntarily taking on the responsibility to look out for the deceased. In order for a claim to be made under Canadian law, the person agreeing to accept the volunteer liability must have some control over the risks. Here the defendant had no control over the risks. Nor was there any evidence that the acceptance of the voluntary role of ski buddy was relied upon by the deceased.
The relationship created between ski buddies did not create a relationship where the volunteer assumed the responsibility over the deceased. Instead, the relationship between the parties was defined by the guides who created the relationship. That meant they ski buddies were to keep each other in visual and vocal contact in the forest and as outlined in a video everyone watched before skiing. The issue of the location of the responsibility, the forest was important. The parties had exited the forest into a logged area where it was generally understood the ski buddy relationship ended.
The ski buddies never spoke to each other so there was no understanding of their roles so no greater requirements were created between the ski buddies. The term ski buddy, as defined by the judge did not create a duty; in fact, the court found a ski buddy is to respect the autonomy of the other ski buddy. Meaning a ski buddy relationship does not mean you give up your skiing to watch the other, you still should enjoy your runs.
Besides the judge’s decision that the timeframe between when the deceased was discovered to not be with the group and when the guides were notified of the fact to not be negligent, the sole issue was contract.
The judge’s conclusions were as followed.
If there was a duty of care between the plaintiff and defendant as a ski buddy, then the defendant met it with his actions.
There was no contract between the parties. There was no contract or contract intention. Even if there was a contract, it ended once the parties exited the forest into the logged area where the accident occurred.
So?
The decision is not as definitive as one would have liked. The decision can also be appealed. However, it is still a great decision for skiers.
The saddest part is the heli-ski guide service created liability, which resulted in this lawsuit against one of its clients. By writing its release so that it not only protected the heli-ski operations but everyone else this would have been avoided.
Here are the articles I based this article on: ‘Ski buddy’ not liable for heli-ski death, court rules and Judge rules “ski buddy” not liable for death. The article describing the suit before the judge’s ruling is ‘Ski buddy’ sued in heli-ski death
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Vail ideas on staying safe on the slope
Posted: January 28, 2014 Filed under: Youth Camps, Zip Line | Tags: Mountain, Ski, Ski Resort, Sports, winter sports, x, y, z Leave a comment
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Theo Meiners Avalanche Research Grants
Posted: November 19, 2013 Filed under: Avalanche | Tags: avalanche, Backcountry skiing, Grants, Ski Leave a comment
In honor of Theo Meiners’ tireless efforts to support avalanche research prior to his passing in the fall of 2012, new funding is available to support avalanche research projects. The International Snow Science Workshop 2012 has teamed with John Byrne III, the owner of Alyeska Resort, to offer two separate grants of $2,500 each during the fall of 2013, and two additional grants of $2,500 during the fall of 2014. These funds will be administered by the American Avalanche Association grants process.
Applications for the research grants must be submitted by November 30, 2013 with the awards being disseminated by December 31, 2013. The same dates will apply for the 2014 grants.
One of the two grants, the “research” grant, can be applied to basic research projects in avalanche behavior or modeling. The other “practical” grant will be awarded to a practitioner project with an emphasis on a subject that would be relevant to helicopter skiing.
Applicants should describe their proposed project, identify the need for grant funding as well as where the funding would be applied, and present a proposed timeline. All grant recipients will be required to submit a paper for presentation at the International Snow Science Workshop. For 2013 recipients they will be required to submit for Banff in 2014. Grant recipients in 2014 will be required to submit for Breckenridge in 2016.
Inquiries about the grants and appropriate projects can be directed to David Hamre at hamred or 907-223-9590
Applications can be submitted by downloading the form and emailing your application to the Chair of the AAA Research Committee (Jordy Hendrikx: jordy.hendrikx).
For more information refer to:
http://www.americanavalancheassociation.org/grants_research.php
Colorado Gems Card now Available with some added Features
Posted: September 12, 2013 Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: "sans-serif";color:black'>Colorado Ski Country USA, <span style='font-family:"Arial", Colorado, Gems, Ski, ski area, Snowboard Leave a commentSkiers and Riders Save on Lift Tickets and Explore Colorado’s Gem Resorts with New 2013/14 Colorado Ski Country USA Gems Card Program
Now On Sale, 2013/14 Season Gems Card Features Two-For-One Ticket Deals and Exclusive Promotions
Photo credit: Colorado Ski Country USA
Denver, Colo. – September 4, 2013 – Colorado Ski Country USA (CSCUSA) today unveiled the new 2013/14 Colorado Gems Card program and announced that cards are now available for purchase. For the 2013/14 season, the revised Gems Card program features two-for-one lift tickets at eight signature Colorado Gem ski resorts and exclusive Flash Deals promotions offered at Gem resorts throughout the season.
The new Gems Card program makes it easy to save on lift tickets. At any Gem resort, card holders can purchase one adult full day lift ticket and receive another adult full day lift ticket for free. Each Gems Card is good for one use per Gem resort, per season, and only a limited number of Gems Cards are available for sale.
In addition to the season-long, buy-one-get-one lift ticket deal, Gems Card holders also have exclusive access to Flash Deals. Flash Deals are special promotions and additional ways to save that are unique to each Gem resort and will be announced last minute throughout the season. CSCUSA will announce Flash Deals in the Gems newsletter, on social media, and on the Gems website www.ColoradoSki.com/gems. Only Colorado Gems Card holders will be able to take advantage of Flash Deals.
For savvy skiers and riders, the Colorado Gems Card is essential to enjoying the powder, terrain, and scenery that Colorado Ski Country has to offer. Available for $20, the 2013/14 Gems Card puts Colorado’s world-renowned skiing within reach for skiers and riders from Colorado and elsewhere. Card holders can take advantage of a day of two-for-one skiing at each of the eight participating resorts, redeeming the cost of the card after just one use.
By definition, a gem is a jewel; something prized especially for great beauty or perfection. There are eight Gems that add to the sparkle of Colorado’s crown of resorts and, in many ways, outshine their world famous neighbors. These Gems epitomize Colorado’s ski culture with their western authenticity, artisanal charm, and nostalgic skiing. Like diamonds in the rough, these resorts are strikingly beautiful, individually unique and not to be overlooked. The Colorado Gem resorts are: Arapahoe Basin, Eldora Mountain Resort, Loveland Ski Area, Monarch Mountain, Powderhorn Resort, Ski Cooper, Ski Granby Ranch, and Sunlight Mountain Resort.
For more information, or to purchase a Gems Card, visit www.ColoradoSki.com/Colorado-Gems-Card. Cards are available now and will be available throughout the upcoming ski season until they are sold out.
The Colorado Gems program is presented by Icelantic Boards; a Colorado based ski company that represents skis, art, adventure creativity, passion and innovation. More information on Icelantic can be found at www.IcelanticBoards.com
9.4.13 Skiers and Riders Save on Lift Tickets and Explore Colorado’s Gem Resorts.pdf
Colorado’s Passport Programs Introduce Colorado Kids to Skiing and Snowboarding
Posted: September 6, 2013 Filed under: Colorado, Skiing / Snow Boarding | Tags: Arapahoe Basin, Aspen Highlands, Colorado, Colorado Ski Country, Copper Mountain, Durango Mountain Resort, Ski, Ski Cooper, skiing, snowboarding Leave a commentColorado Ski Country USA’s Passport Programs Introduce Colorado Kids to Skiing and Snowboarding
First Class Program and Lift Access to Twenty Resorts an Unmatched Value for Families
Aspen Snowmass Jeremy Swanson
Monarch
Photo credits: (L-R) Aspen/Snowmass, Jeremy Swanson; Scott Markewitz; Monarch Mountain
Denver, Colo. – September 2, 2013 – Colorado Ski Country USA (CSCUSA) announced today the Association’s popular 5th and 6th Grade Passport Programs are available for the 2013/14 ski season. The Passport Programs introduce fifth and sixth grade kids to skiing and snowboarding by giving fifth graders free access, and sixth graders discounted access, to twenty of Colorado’s finest ski resorts.
As the industry’s most influential program, the CSCUSA 5th Grade Passport allows fifth graders three days of free skiing at each of the twenty CSCUSA participating member resorts. The 6th Grade Passport allows sixth graders four days of skiing at the same twenty resorts for $99, which amounts to 80 days on the slopes for less than $1.25 each day.
Additionally, CSCUSA will offer First Class Lessons to complement the 5th Grade Passport Program. First Class provides fifth graders who are new to skiing and snowboarding the opportunity to learn the sport from some of the best instructors in the industry. Registered 5th Grade Passport holders who have never skied nor snowboarded, and are therefore considered “never-evers”, are eligible to receive a free ski or snowboard lesson and rental equipment during the month of January, which is also Learn to Ski and Snowboard Month. Fifth graders who qualify for First Class have the option of seventeen different resorts to have their introductory experience on snow. Advance reservations are required for First Class Lessons.
“Colorado Ski Country’s Passport Programs have introduced an entire generation of youngsters to skiing and snowboarding,” said Melanie Mills, president and CEO of Colorado Ski Country USA. “By giving 5th and 6th graders the opportunity to ski and ride, we’re helping kids to become lifelong skiers and snowboarders. The First Class Lesson program ensures that novice young skiers and snowboarders will enjoy their introductory on-snow experience and grow to become ambassadors of the state’s signature sports.”
To register kids for the Passport Programs, parents can visit www.ColoradoSki.com/Passport. Details on the First Class Program can also be found at ColoradoSki.com/Passport. The CSCUSA Passport Programs enjoy the support of presenting sponsor, Chipotle, and of program partners Christy Sports and Credit Union of Colorado.
Participating resorts in the 2013-14 Passport programs include: Arapahoe Basin, Aspen Highlands, Aspen Mountain, Buttermilk, Copper Mountain, Crested Butte, Purgatory at Durango Mountain Resort, Eldora, Howelsen Hill, Loveland, Monarch, Powderhorn, Ski Cooper, Ski Granby Ranch, Snowmass, Steamboat, Sunlight, Telluride, Winter Park and Wolf Creek.
For more details please visit www.ColoradoSki.com/Passport or call 303-866-9707.
New York Skier Safety Act
Posted: August 28, 2013 Filed under: New York | Tags: Alpine skiing, New York, NY, Platter lift, Recreation, Ski, Ski Resort, Skier Safety Act Leave a commentNew York Skier Safety Act
General Obligations Law
ARTICLE 18. SAFETY IN SKIING CODE
NY CLS Gen Oblig Article 18 Note (2012)
Gen Oblig Article 18 Note
HISTORY:
Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).
NOTES:
Laws 1988, ch 711, § 4, eff Nov 1, 1988, provides as follows:
§ 4. This act shall take effect on November first, nineteen hundred eighty-eight; provided that section 18-106 of the general obligations law, as added by section one of this act, shall take effect on the first day of October, nineteen hundred eighty-nine; and provided further that the commissioner of labor, effective immediately, is authorized and directed to promulgate any and all rules and regulations necessary to the timely implementation of the provisions of this act on their effective dates.
Research References & Practice Aids:
3 NY Jur 2d Amusements and Exhibitions § 30
§ 18-103. Duties of ski area operators
§ 18-104. Duties of passengers
§ 18-106. Duties of skiers and ski area operators with respect to inherent risks
§ 18-101. Legislative purpose
The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry.
§ 18-102. Definitions
The following words and phrases when used in this article shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
1. “Lift ticket” means any item issued by a ski area operator to any skier that is intended to be affixed to the outerwear of the skier, or otherwise displayed by a skier, to signify lawful entry upon and use of the passenger tramways or ski slopes or trails maintained by the ski area operator.
2. “Passenger tramway” means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.
3. “Passenger” means a person in or on or being transported by a tramway.
4. “Ski area” means all ski slopes, ski trails and passenger tramways administered as a single enterprise within this state.
5. “Ski area operator” means a person, firm or corporation, and its agents and employees, having operational and administrative responsibility for any ski area, including any agency of the state, any political subdivision thereof, and any other governmental agency or instrumentality.
6. “Skier” means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing.
7. “Ski slopes and trails” mean those areas designated by the ski area operator for skiing.
§ 18-103. Duties of ski area operators
Every ski area operator shall have the following duties:
1. To equip all trail maintenance vehicles with such warning implements or devices as shall be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law. Such implements or devices shall be present and operating whenever the vehicle is within the borders of any slope or trail.
2. To post in a location likely to be seen by all skiers signs of such size and color as will enable skiers to have knowledge of their responsibilities under this article.
3. To hold employee training sessions at least once before the beginning of each season, the contents of which shall be specified by the commissioner of labor upon the recommendation of the passenger tramway advisory council, as follows:
a. for operators of trail maintenance equipment concerning the safe operation of such vehicles in the ski area;
b. for passenger tramway attendants concerning the safe operation of passenger tramways;
c. for ski personnel charged with the responsibility of evacuating passengers from passenger tramways concerning proper evacuation techniques; and
d. for all other personnel charged with on-mountain maintenance, inspection or patrol duties as to methods to be used for summoning aid in emergencies.
4. To conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law, the location of such man-made obstructions as, but not limited to, snow-making equipment, electrical outlets, timing equipment, stanchions, pipes, or storage areas that are within the borders of the designated slope or trail, when the top of such obstruction is less than six feet above snow level.
5. To maintain in a central location at the ski area an information board or boards showing at a minimum the following:
a. the location of tramways, slopes or trails;
b. the status of each trail–open or closed;
c. the location of emergency communications or medical equipment and sites designated by the ski area operator for receipt of notice from skiers pursuant to subdivision thirteen of this section;
d. the relative degree of difficulty of each slope or trail (at a minimum easier, more difficult, most difficult); and
e. the general surface condition of each slope and trail as most recently recorded in the log required to be maintained by subdivision six of this section.
6. To inspect each open slope or trail that is open to the public within the ski area at least twice a day, and enter the results of such inspection in a log which shall be available for examination by the commissioner of labor. The log shall note:
a. the general surface conditions of such trail at the time of inspection (powder, packed powder, frozen granular, icy patches or icy surface, bare spots or other surface conditions);
b. the time of inspection and the name of the inspector;
c. the existence of any obstacles or hazards other than those which may arise from:
(i) skier use;
(ii) weather variations including freezing and thawing; or
(iii) mechanical failure of snow grooming or emergency equipment which may position such equipment within the borders of a slope or trail.
7. To develop and maintain a written policy consistent with the regulations of the commissioner of labor upon the advice of the passenger tramway advisory council for situations involving the reckless conduct of skiers, which shall include, but not be limited to:
a. a definition of reckless conduct; and
b. procedures for approaching and warning skiers of reckless conduct and procedures for dealing with such skiers which may include the revocation of the lift tickets of such skiers.
8. To designate personnel to implement the ski area’s policy on reckless conduct.
9. To report to the commissioner of labor by telephone within twenty-four hours any fatality or injury resulting in a fatality at the ski area.
10. To conspicuously post and maintain such ski area signage, including appropriate signage at the top of affected ski slopes and trails, notice of maintenance activities and for passenger tramways as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.
11. To post in a conspicuous location at each lift line a sign, which shall indicate the degree of difficulty of trails served by that lift with signs as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.
12. To ensure that lift towers located within the boundaries of any ski slope or trail are padded or otherwise protected and that no protruding metal or wood objects, such as ladders or steps, shall be installed on the uphill or side portion of lift towers within the borders of a ski slope or trail, unless such objects are below the snow line, at least six feet above it, or padded or otherwise protected with such devices as, but not limited to, the following:
a. commercially available tower padding;
b. air or foam filled bags;
c. hay bales encased in a waterproof cover; or
d. soft rope nets properly spaced from the tower.
13. To, within a reasonable amount of time after the inspection required by subdivision six of this section, conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law and to provide sufficient warning to skiers by such marking or remove such obstacles or hazards which are located within the boundaries of any ski slope or trail and were noted pursuant to paragraph c of subdivision six of this section; and to also conspicuously mark with such implements and provide such warning or remove such obstacles or hazards within a reasonable amount of time after receipt of notice by the ski area operator from any skier as to the presence of such obstacles or hazards when notice is given at sites designated by the ski area operator for such receipt and the locations of which are made known to skiers pursuant to paragraph c of subdivision five of this section.
14. To have present at all times when skiing activity is in progress, individuals properly and appropriately trained for the safe operation of on-slope vehicles; trail maintenance equipment; tramways; tramway evacuations; implementation of the reckless skier policy; first aid and outdoor rescue; and, to have present according to a schedule posted for access by skiers, by the ski area operator, personnel appropriately trained in the instruction of skiers and passengers in methods of risk reduction while using ski slopes and passenger tramways and the instruction of skiers with respect to the risks inherent in the sport.
§ 18-104. Duties of passengers
All passengers shall have the following duties:
1. To familiarize themselves with the safe use of any tramway prior to its use;
2. To remain in the tramway if the operation of a passenger tramway, as defined pursuant to section two hundred two-c of the labor law, is interrupted for any reason, until instructions or aid are provided by the ski area operator;
3. To board or disembark from passenger tramways only at points or areas designated by the ski area operator;
4. Not to eject any objects or material from a passenger tramway;
5. To use restraint devices in accordance with posted instructions;
6. To wear retention straps or other devices to prevent runaway skis;
7. Not to interfere with the operation of a passenger tramway;
8. Not to place or caused to be placed on the uphill track of a surface lift any object which may interfere with its normal operation; and
9. Not to wear loose scarves, clothing or accessories or expose long hair which may become entangled with any part of the device.
§ 18-105. Duties of skiers
All skiers shall have the following duties:
1. Not to ski in any area not designated for skiing;
2. Not to ski beyond their limits or ability to overcome variations in slope, trail configuration and surface or subsurface conditions which may be caused or altered by weather, slope or trail maintenance work by the ski area operator, or skier use;
3. To abide by the directions of the ski area operator;
4. To remain in constant control of speed and course at all times while skiing so as to avoid contact with plainly visible or clearly marked obstacles and with other skiers and passengers on surface operating tramways;
5. To familiarize themselves with posted information before skiing any slope or trail, including all information posted pursuant to subdivision five of section 18-103 of this article;
6. Not to cross the uphill track of any surface lift, except at points clearly designated by the ski area operator;
7. Not to ski on a slope or trail or portion thereof that has been designated as “closed” by the ski area operator;
8. Not to leave the scene of any accident resulting in personal injury to another party until such times as the ski area operator arrives, except for the purpose of summoning aid;
9. Not to overtake another skier in such a manner as to cause contact with the skier being overtaken and to yield the right-of-way to the skier being overtaken;
10. Not to willfully stop on any slope or trail where such stopping is likely to cause a collision with other skiers or vehicles;
11. To yield to other skiers when entering a trail or starting downhill;
12. To wear retention straps or other devices to prevent runaway skis;
13. To report any personal injury to the ski area operator before leaving the ski area; and
14. Not to willfully remove, deface, alter or otherwise damage signage, warning devices or implements, or other safety devices placed and maintained by the ski area operator pursuant to the requirements of section 18-103 of this article.
§ 18-106. Duties of skiers and ski area operators with respect to inherent risks
It is recognized that skiing is a voluntary activity that may be hazardous regardless of all feasible safety measures that can be undertaken by ski area operators. Accordingly:
1. Ski area operators shall have the following additional duties:
a. To post at every point of sale or distribution of lift tickets, whether on or off the premises of the ski area operator, a conspicuous “Warning to Skiers” relative to the inherent risks of skiing in accordance with regulations promulgated by the commissioner of labor pursuant to subdivision four of section eight hundred sixty-seven of the labor law, and to imprint upon all lift tickets sold or distributed, such text and graphics as the commissioner of labor shall similarly specify, which shall conspicuously direct the attention of all skiers to the required “Warning to Skiers”;
b. To post at every point of sale or distribution of lift tickets at a ski area notice to skiers and passengers that this article prescribes certain duties for skiers, passengers and ski area operators, and to make copies of this article in its entirety available without charge upon request to skiers and passengers in a central location at the ski area;
c. To make available at reasonable fees, as required by subdivision thirteen of section 18-103 of this article, instruction and education for skiers relative to the risks inherent in the sport and the duties prescribed for skiers by this article, and to conspicuously post notice of the times and places of availability of such instruction and education in locations where it is likely to be seen by skiers; and
d. To post notice to skiers of the right to a refund to the purchaser in the form and amount paid in the initial sale of any lift ticket returned to the ski area operator, intact and unused, upon declaration by such purchaser that he or she is unprepared or unwilling to ski due to the risks inherent in the sport or the duties imposed upon him or her by this article.
2. Skiers shall have the following additional duties to enable them to make informed decisions as to the advisability of their participation in the sport:
a. To seek out, read, review and understand, in advance of skiing, a “Warning to Skiers” as shall be defined pursuant to subdivision five of section eight hundred sixty-seven of the labor law, which shall be displayed and provided pursuant to paragraph a of subdivision one of this section; and
b. To obtain such education in the sport of skiing as the individual skier shall deem appropriate to his or her level of ability, including the familiarization with skills and duties necessary to reduce the risk of injury in such sport.
§ 18-107. Construction
Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law.
§ 18-108. Severability
If any provision of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article that can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.
§ 867. Safety in skiing code
1. The [fig 1] commissioner, on the advice of the passenger tramway advisory council as created pursuant to section twelve-c of this chapter, shall promulgate rules and regulations, consistent with article eighteen of the general obligations law, intended to guard against personal injuries to downhill skiers which will, in view of such intent, define the duties and responsibilities of downhill skiers and the duties and responsibilities of ski area operators.
2. The commissioner shall enforce all the provisions of this article and the regulations adopted pursuant hereto and may issue such orders against any entity, public or private, as he finds necessary, directing compliance with any provision of this article or such regulations. The commissioner may also investigate any fatality or injury resulting in a fatality at a ski area.
3. The passenger tramway advisory council shall conduct any investigation necessary to carry out the provisions of this [fig 1] article.
4. The passenger tramway advisory council shall conduct public hearings on any rules and regulations proposed under this section prior to their promulgation by the [fig 1] commissioner. The passenger tramway advisory council shall fix a time and place for each such hearing and cause such notice as it may deem appropriate to be given to the public and news media prior to such a hearing. Testimony may be taken and evidence received at such a hearing pursuant to procedures prescribed by the passenger tramway advisory council.
5. Upon advice of the passenger tramway advisory council, the commission shall, on the fifteenth day of March, nineteen hundred eighty-nine, promulgate rules which shall set forth specifications for the uniform textual and graphic content, physical description, and conspicuous posting of a “Warning to Skiers” regarding the risks inherent in the sport as set forth in section 18-101 of the general obligations law, which shall be posted and provided to skiers by ski areas operators in accordance with subdivision one of section 18-106 of the general obligations law, and shall promulgate rules which shall set forth textual and graphic specifications designed to occupy not more than twenty-five percent of the imprintable surface area of the face side nor more than eighty percent of the imprintable surface area of the reverse side or backing paper of all lift tickets sold or distributed in the state, as defined by section 18-102 of the general obligations law, which shall uniformly serve to direct the attention of all skiers to the “Warning to Skiers” herein directed to be promulgated and required by section 18-106 of the general obligations law.
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North Carolina Skier Safety Act
Posted: August 28, 2013 Filed under: North Carolina | Tags: Alpine skiing, NC, Nordic, North Carolina, Platter lift, Ski, Ski Resort, Skier Safety Act, Terrain park, Winter sport Leave a commentNorth Carolina Skier Safety Act
General Statutes of North Carolina
CHAPTER 99C. ACTIONS RELATING TO WINTER SPORTS SAFETY AND ACCIDENTS
Go to the North Carolina Code Archive Directory
N.C. Gen. Stat. § 99C-1 (2013)
§ 99C-1. Definitions
When used in this Chapter, unless the context otherwise requires:
(1) Competitor. — A skier actually engaged in competition or in practice therefor with the permission of the ski area operator on any slope or trail or portion thereof designated by the ski area operator for the purpose of competition.
(1a) Freestyle terrain. — Constructed and natural features in ski areas intended for winter sports including, but not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes, half-pipes, quarter-pipes, and freestyle-bump terrain.
(2) Passenger. — Any person who is being transported or is awaiting transportation, or being conveyed on a passenger tramway or is moving from the disembarkation point of a passenger tramway or is in the act of embarking upon or disembarking from a passenger tramway.
(3) Passenger tramway. — Any device used to transport passengers uphill on skis or other winter sports devices, or in cars on tracks, or suspended in the air, by the use of steel cables, chains, belts or ropes. Such definition shall include such devices as a chair lift, J Bar, or platter pull, rope tow, and wire tow.
(4) Ski area. — All winter sports slopes, alpine and Nordic ski trails, freestyle terrain and passenger tramways, that are administered or operated as a ski area enterprise within this State.
(5) Ski area operator. — A person, corporation, or organization that is responsible for the safe operation and maintenance of the ski area.
(6) Skier. — Any person who is wearing skis or other winter sports devices or any person who for the purpose of skiing or other winter sports is on a designated and clearly marked winter sports slope, alpine or Nordic ski trail or freestyle terrain that is located at a ski area, or any person who is a passenger or spectator at a ski area.
(7) Winter sports. — Any use of skis, snowboards, snowshoes, or any other device for skiing, sliding, jumping, or traveling on snow or ice.
§ 99C-2. Duties of ski area operators and skiers
(a) A ski area operator shall be responsible for the maintenance and safe operation of any passenger tramway in his ski area and insure that such is in conformity with the rules and regulations prescribed and adopted by the North Carolina Department of Labor pursuant to G.S. 95-120(1) as such appear in the North Carolina Administrative Procedures Act. The North Carolina Department of Labor shall conduct certifications and inspections of passenger tramways.
A ski area operator’s responsibility regarding passenger tramways shall include, but is not limited to, insuring operating personnel are adequately trained and are adequate in number; meeting all standards set forth for terminals, stations, line structures, and line equipment; meeting all rules and regulations regarding the safe operation and maintenance of all passenger lifts and tramways, including all necessary inspections and record keeping.
(b) A skier shall have the following responsibilities:
(1) To know the range of the skier’s abilities to negotiate any ski slope or trail and to ski within the limits of such ability;
(2) To maintain control of the skier’s speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and obvious hazards and inherent risks, including variations in terrain, snow, or ice conditions, bare spots and rocks, trees and other forms of forest growth or forest debris;
(3) To stay clear of snow grooming equipment, all vehicles, pole lines, lift towers, signs, snowmaking equipment, and any other equipment on the ski slopes and trails;
(4) To heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others;
(5) To wear retention straps, ski brakes, or other devices to prevent runaway skis or snowboards;
(6) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, to avoid moving skiers already on the ski slope or trail;
(7) To not move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug or while such person is under the influence of alcohol or any narcotic or any drug;
(8) If involved in a collision with another skier or person, to not leave the vicinity of the collision before giving his name and current address to an employee of the ski area operator, a member of the ski patrol, or the other skier or person with whom the skier collided, except in those cases when medical treatment is required; in which case, said information shall be provided as soon as practical after the medical treatment has been obtained. If the other person involved in the collision is unknown, the skier shall leave the personal identification required by this subsection with the ski area operator;
(9) Not to embark upon or disembark from a passenger tramway except at an area that is designated for such purpose;
(10) Not to throw or expel any object from a passenger tramway;
(11) Not to perform any action that interferes with the operation or running of a passenger tramway;
(12) Not to use such tramway unless the skier has the ability to use it with reasonable safety;
(13) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties;
(14) Not to embark upon a passenger tramway without the authority of the ski area operator;
(15) If using freestyle terrain, to know the range of the skier’s abilities to negotiate the terrain and to avoid conditions and obstacles beyond the limits of such ability that a visible inspection should have revealed.
(c) A ski area operator shall have the following responsibilities:
(1) To mark all trails and maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or moving in the ski area;
(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;
(3) To indicate the relative degree of difficulty of a slope or trail by appropriate signs. Such signs are to be prominently displayed at the base of a slope where skiers embark on a passenger tramway serving the slope or trail, or at the top of a slope or trail. The signs must be of the type that have been approved by the National Ski Areas Association and are in current use by the industry;
(4) To post at or near the top of or entrance to, any designated slope or trail, signs giving reasonable notice of unusual conditions on the slope or trail;
(5) To provide adequate ski patrols;
(6) To mark clearly any hidden rock, hidden stump, or any other hidden hazard known by the ski area operator to exist;
(6a) To inspect the winter sports slopes, alpine and Nordic ski trails, and freestyle terrains that are open to the public at least twice daily and maintain a log recording: (i) the time of the inspection and the name of the inspector(s); and (ii) the general surface conditions, based on industry standards, for the entire ski area at the time of the inspections;
(6b) To post, in a conspicuous manner, the general surface conditions for the entire ski area twice daily; and
(7) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties.
§ 99C-3. Violation constitutes negligence
A violation of any responsibility placed on the skier, passenger or ski area operator as set forth in G.S. 99C-2, to the extent such violation proximately causes injury to any person or damage to any property, shall constitute negligence on the part of the person violating the provisions of that section.
§ 99C-4. Competition
The ski area operator shall, prior to the beginning of a competition, allow each competitor a reasonable visual inspection of the course or area where the competition is to be held. The competitor shall be held to assume risk of all course conditions including, but not limited to, weather and snow conditions, course construction or layout, and obstacles which a visual inspection should have revealed. No liability shall attach to a ski area operator for injury or death of any competitor proximately caused by such assumed risk.
Ohio Skier Safety Act
Posted: August 28, 2013 Filed under: Ohio | Tags: #OH, Alpine skiing, Chairlift, Ohio, Ski, Ski Resort, Skier, Skier Safety Act, Skimobile, Wire rope Leave a commentOhio Skier Safety Act
Page’s Ohio Revised Code Annotated:
TITLE 41. LABOR AND INDUSTRY
CHAPTER 4169. SKI TRAMWAY BOARD
Go to the Ohio Code Archive Directory
ORC Ann. 4169.01 (2013)
§ 4169.01. Definitions
As used in this chapter:
(A) “Skier” means any person who is using the facilities of a ski area, including, but not limited to, the ski slopes and ski trails, for the purpose of skiing, which includes, without limitation, sliding or jumping on snow or ice on skis, a snowboard, sled, tube, snowbike, toboggan, or any other device.
(B) “Passenger” means any person who is being transported or conveyed by a passenger tramway.
(C) “Ski slopes” or “ski trails” means those sites that are reserved or maintained and are open for use, as designated by a ski area operator.
(D) “Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state.
(E) “Ski area operator” means a person or organization that is responsible for the operation of a ski area, including an agency of this state or of a political subdivision thereof.
(F) “Passenger tramway” means a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers with one or more spans. “Passenger tramway” includes all of the following:
(1) Aerial passenger tramway, a device used to transport passengers in several open or enclosed cars attached to and suspended from a moving wire rope or attached to a moving wire rope and supported on a standing wire rope, or similar devices;
(2) Skimobile, a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices;
(3) Chair lift, a device 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, or similar devices. Chair lifts need not include foot-rests or passenger restraint devices.
(4) J bar, T bar, or platter pull, devices that pull skiers riding on skis or other devices by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans, or similar devices;
(5) Rope tow, a device with one span and no intermediate towers that pulls skiers riding on skis or other devices as they grasp a rope manually, or similar devices;
(6) Wire rope tow, a device with one span and no intermediate towers by which skiers are pulled on skis or other devices while manually grasping a bar attached to a wire hauling cable.
(7) Conveyor, a flexible moving element, including a belt, that transports passengers on one path and returns underneath the uphill portion.
The operation of a passenger tramway shall not constitute the operation of a common carrier.
(G) “Competitor” means a skier actually engaged in competition, a special event, or training or practicing for competition or a special event in any portion of the area made available by the ski area operator.
(H) “Freestyler” means a skier utilizing freestyle terrain marked with signage approved by the national ski areas association.
(I) “Freestyle terrain” means, but is not limited to, terrain parks and terrain park features, such as jumps, rails, fun boxes, other constructed or natural features, half-pipes, quarter-pipes, and freestyle-bump terrain.
(J) “Tubing park” means a ski slope designated and maintained for the exclusive use of skiers utilizing tubes to slide to the bottom of the course and serviced by a dedicated passenger tramway.
HISTORY:
138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05.
NOTES:
Section Notes
EFFECT OF AMENDMENTS
151 v S 61, effective September 26, 2005, rewrote (A); in the introductory language of (F), inserted “or without skis or other devices” and made related changes, and added “all of the following” to the end; and added the first paragraph of (F)(7) and (G) through (J).
Related Statutes & Rules
Cross-References to Related Statutes
Standard renewal procedure defined, RC § 4745.01.
Tramway excepted from definition of amusement rides, RC § 1711.50.
OH Administrative Code
Department of commerce, ski tramway board —
Definitions in re new installations and modifications of existing passenger tramways. OAC 4101:14-1-03.
Case Notes
ANALYSIS Go to ReleaseRelease Go to SnowboarderSnowboarder
Return to Topic ListRELEASE.
The rental agreement and release of liability barred recovery for the ski lift injuries: Broome v. Ohio Ski Slopes, 108 Ohio App. 3d 86, 670 N.E.2d 262, 1995 Ohio App. LEXIS 5971 (1995).
Return to Topic ListSNOWBOARDER.
Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).
§ 4169.02. Ski tramway board established
(A) For the purposes of regulating the construction, maintenance, mechanical operation, and inspection of passenger tramways that are associated with ski areas and of registering operators of passenger tramways in this state, there is hereby established in the division of industrial compliance in the department of commerce a ski tramway board to be appointed by the governor, with the advice and consent of the senate. The board shall consist of three members, one of whom shall be a public member who is an experienced skier and familiar with ski areas in this state, one of whom shall be a ski area operator actively engaged in the business of recreational skiing in this state, and one of whom shall be a professional engineer who is knowledgeable in the design or operation of passenger tramways.
Of the initial appointments, one member shall be appointed for a term of one year, one for a term of two years, and one for a term of three years. The member appointed to the term beginning on July 1, 1996, shall be appointed to a term ending on June 30, 1997; the member appointed to a term beginning on July 1, 1997, shall be appointed to a term ending on June 30, 1999; and the member appointed to a term beginning on July 1, 1998, shall be appointed to a term ending on June 30, 2001. Thereafter, each of the members shall be appointed for a term of six years. Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. In the event of a vacancy, the governor, with the advice and consent of the senate, shall appoint a successor who shall hold office for the remainder of the term for which the successor’s predecessor was appointed. A member shall continue in office subsequent to the expiration date of the member’s term until the member’s successor takes office or until a period of sixty days has elapsed, whichever occurs first. The board shall elect a chairperson from its members.
The governor may remove any member of the board at any time for misfeasance, nonfeasance, or malfeasance in office after giving the member a copy of the charges against the member and an opportunity to be heard publicly in person or by counsel in the member’s defense. Any such act of removal by the governor is final. A statement of the findings of the governor, the reason for the governor’s action, and the answer, if any, of the member shall be filed by the governor with the secretary of state and shall be open to public inspection.
Members of the board shall be paid two hundred fifty dollars for each meeting that the member attends, except that no member shall be paid or receive more than seven hundred fifty dollars for attending meetings during any calendar year. Each member shall be reimbursed for the member’s actual and necessary expenses incurred in the performance of official board duties. The chairperson shall be paid two hundred fifty dollars annually in addition to any compensation the chairperson receives under this division for attending meetings and any other compensation the chairperson receives for serving on the board.
The division shall provide the board with such offices and such clerical, professional, and other assistance as may be reasonably necessary for the board to carry on its work. The division shall maintain accurate copies of the board’s rules as promulgated in accordance with division (B) of this section and shall keep all of the board’s records, including business records, and inspection reports as well as its own records and reports. The cost of administering the board and conducting inspections shall be included in the budget of the division based on revenues generated by the registration fees established under section 4169.03 of the Revised Code.
(B) In accordance with Chapter 119. of the Revised Code, the board shall adopt and may amend or rescind rules relating to public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways. The rules shall be in accordance with established standards in the business of ski area operation, if any, and shall not discriminate in their application to ski area operators.
No person shall violate the rules of the board.
(C) The authority of the board shall not extend to any matter relative to the operation of a ski area other than the construction, maintenance, mechanical operation, and inspection of passenger tramways.
(D) A majority of the board constitutes a quorum and may perform and exercise all the duties and powers devolving upon the board.
HISTORY:
138 v H 775 (Eff 7-1-81); 146 v S 162 (Eff 10-29-95); 146 v S 293 (Eff 9-26-96); 146 v H 535. Eff 11-20-96; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.
NOTES:
Section Notes
Editor’s Notes
The effective date is set by § 812.10 of 153 v H 1.
The provisions of 815.10 of 153 v H 1 read as follows:
SECTION 815.10. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act:
* * *
Section 4169.02 of the Revised Code as amended by both Am. Sub. S.B. 293 and Sub. H.B. 535 of the 121st General Assembly.
* * *
The provisions of § 3 of HB 535 (146 v –) read as follows:
SECTION 3. The Ski Tramway Board is the successor to and a continuation of the Safety in Skiing Board.
EFFECT OF AMENDMENTS
The 2012 amendment substituted “division of industrial compliance” for “division of labor” in the first sentence of the first paragraph of (A).
153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in the first sentence of the first paragraph of (A).
Related Statutes & Rules
Cross-References to Related Statutes
Penalty, RC § 4169.99.
Ohio Constitution
Appointments subject to advice and consent of Senate, Ohio Const. art III, § 21.
OH Administrative Code
Department of commerce, ski tramway board —
General provisions. OAC ch. 4101:14-1.
Introduction and scope of rules. OAC 4101:14-1-01 et seq.
Notice in the event of a serious accident. OAC 4101:14-1-09.
Notice of public hearings and public meetings. OAC 4101:14-1-08.
Comparative Legislation
SAFETY IN SKIING:
NY–NY CLS Labor § 865 et seq
§ 4169.03. Registration of passenger tramway operators
(A) Before a passenger tramway operator may operate any passenger tramway in the state, the operator shall apply to the ski tramway board, on forms prepared by it, for registration by the board. The application shall contain an inventory of the passenger tramways that the applicant intends to operate and other information as the board may reasonably require and shall be accompanied by the following annual fees:
(1) Each aerial passenger tramway, five hundred dollars;
(2) Each skimobile, two hundred dollars;
(3) Each chair lift, two hundred dollars;
(4) Each J bar, T bar, or platter pull, one hundred dollars;
(5) Each rope tow, fifty dollars;
(6) Each wire rope tow, seventy-five dollars;
(7) Each conveyor, one hundred dollars.
When an operator operates an aerial passenger tramway, a skimobile, or a chair lift during both a winter and summer season, the annual fee shall be one and one-half the above amount for the respective passenger tramway.
(B) Upon payment of the appropriate annual fees in accordance with division (A) of this section, the board shall issue a registration certificate to the operator. Each certificate shall remain in force until the thirtieth day of September next ensuing. The board shall renew an operator’s certificate in accordance with the standard renewal procedure in Chapter 4745. of the Revised Code upon payment of the appropriate annual fees.
(C) Money received from the registration fees and from the fines collected pursuant to section 4169.99 of the Revised Code shall be paid into the state treasury to the credit of the industrial compliance operating fund created in section 121.084 of the Revised Code.
(D) No person shall operate a passenger tramway in this state unless the person has been registered by the board.
HISTORY:
138 v H 775 (Eff 7-1-81); 139 v S 550 (Eff 11-26-82); 141 v H 201 (Eff 7-1-85); 146 v S 162 (Eff 10-29-95); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.
NOTES:
Section Notes
Editor’s Notes
The effective date is set by § 812.10 of 153 v H 1.
EFFECT OF AMENDMENTS
The 2012 amendment substituted “industrial compliance” for “labor” in (C).
153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in (C).
151 v S 61, effective September 26, 2005, in the introductory language of (A), deleted “such” preceding “other information”; and added (A)(7).
Related Statutes & Rules
Cross-References to Related Statutes
Industrial compliance operating fund, RC § 121.084.
Penalty, RC § 4169.99.
Ski tramway board established, RC § 4169.02.
Standard renewal procedure defined, RC § 4745.01.
OH Administrative Code
Fees; renewals. OAC 4101:14-1-06.
Registration and inspections. OAC 4101:14-1-05.
§ 4169.04. Inspections; report of violation
(A) The division of industrial compliance in the department of commerce shall make such inspection of the construction, maintenance, and mechanical operation of passenger tramways as the ski tramway board may reasonably require. The division may contract with other qualified engineers to make such inspection or may accept the inspection report by any qualified inspector of an insurance company authorized to insure passenger tramways in this state.
(B) If, as the result of an inspection, an employee of the division or other agent with whom the division has contracted finds that a violation of the board’s rules exists or a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, the employee or agent shall make an immediate report to the board for appropriate investigation and order.
HISTORY:
138 v H 775 (Eff 7-1-81); 145 v H 152 (Eff 7-1-93); 146 v S 162 (Eff 10-29-95); 146 v S 293 (Eff 9-26-96); 146 v H 535. Eff 11-20-96; 153 v H 1, § 101.01, eff. 10-16-09; 2012 HB 487, § 101.01, eff. Sept. 10, 2012.
NOTES:
Section Notes
Editor’s Notes
The effective date is set by § 812.10 of 153 v H 1.
The provisions of 815.10 of 153 v H 1 read as follows:
SECTION 815.10. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act:
* * *
Section 4169.04 of the Revised Code as amended by both Am. Sub. S.B. 293 and Sub. H.B. 535 of the 121st General Assembly.
* * *
EFFECT OF AMENDMENTS
The 2012 amendment substituted “The division of industrial compliance” for “The division of labor” in the first sentence of (A).
153 v H 1, effective October 16, 2009, substituted “labor” for “industrial compliance” in the first sentence of (A).
OH Administrative Code
Acceptance tests. OAC 4101:14-1-04.
Registration and inspections. OAC 4101:14-1-05.
§ 4169.05. Written complaint alleging violation
Any person may make a written complaint to the ski tramway board setting forth an alleged violation of the board’s rules by a registered passenger tramway operator or a condition in passenger tramway construction, maintenance, or mechanical operation that allegedly endangers public safety. The board shall forward a copy of the complaint to the operator named in it and may accompany it with an order that requires the operator to answer the complaint in writing within a specified period of time. The board may investigate the complaint if it determines that there are reasonable grounds for such an investigation.
HISTORY:
138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.
§ 4169.06. Emergency order; investigation and order; suspension of certificate
(A) When facts are presented to any member of the ski tramway board that indicate that immediate danger exists in the continued operation of a passenger tramway, any member of the board, after such verification of the facts as is practical under the circumstances and consistent with immediate public safety, may by an emergency written order require the operator of the tramway to cease using the tramway immediately for the transportation of passengers. Any person may serve notice on the operator or the operator’s agent who is in immediate control of the tramway by delivering a true and attested copy of the order, and the operator or the operator’s agent shall furnish proof of receipt of such notice by signing an affidavit on the back of the copy of the order. The emergency order shall be effective for a period not to exceed forty-eight hours from the time of notification.
(B) Immediately after the issuance of an emergency order pursuant to this section, the board shall investigate the facts of the case. If the board finds that a violation of any of its rules exists or that a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, it shall issue a written order setting forth its findings and the corrective action to be taken and fixing a reasonable time for compliance.
(C) After an investigation pursuant to division (B) of this section, if the board determines that danger to public safety exists in the continued operation of a passenger tramway, it shall so state in the order, describe in detail the basis for its findings, and in the order may require the operator not to operate the tramway until the operator has taken the corrective action ordered pursuant to this section. If the operator continues to use the tramway following receipt of such order, the board may request the court of common pleas having jurisdiction in the county where the tramway is located to issue an injunction forbidding operation of the tramway.
(D) An operator of a passenger tramway may request a hearing by the board on any order issued pursuant to this chapter and may appeal the results of such a hearing in accordance with Chapter 119. of the Revised Code. An operator may appeal an order suspending the operation of the operator’s tramway without first requesting a hearing.
(E) If an operator fails to comply with an order of the board issued pursuant to this chapter within the specified time, the board may suspend the registration certificate of the operator for such time as it considers necessary to gain compliance with its order.
No operator shall operate a passenger tramway while the operator’s registration certificate is under suspension by the board.
HISTORY:
138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.
NOTES:
Related Statutes & Rules
Cross-References to Related Statutes
Penalty, RC § 4169.99.
Ohio Rules
Injunctions, CivR 65.
OH Administrative Code
Registration and inspections; fine for violation. OAC 4101:14-1-05.
§ 4169.07. Responsibilities of ski area operator and tramway passengers
(A) A ski area operator shall be responsible for any construction that the operator actually performs or has actually performed and for the maintenance and operation of any passenger tramway in the operator’s ski area.
(B) A passenger shall be responsible for: not embarking upon or disembarking from a passenger tramway except at an area that is designated for such purpose; not throwing or expelling any object from a passenger tramway; not performing any action that interferes with the running or operation of a passenger tramway; learning how to use a passenger tramway safely before the time that the passenger desires to embark upon it; not using such a tramway unless the passenger has the ability to use it safely without any on-the-spot instruction from the ski area operator; not engaging willfully or negligently in any type of conduct that contributes to or causes injury to another person; and not embarking upon a passenger tramway without the authority of the ski area operator.
HISTORY:
138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96.
NOTES:
Section Notes
Editor’s Notes
The effective date is set by section 4 of HB 775.
OH Administrative Code
Mechanical operation and maintenance. OAC 4101:14-1-05.
Case Notes
LIABILITY.
Where there was no evidence to establish whether a ramp was man-made or a natural incline, there were disputed facts from which reasonable minds could conclude that an injury occurred on a ramp which was a part of the passenger tramway constructed for the transport of passengers, and thus, that the owner had violated its responsibility pursuant to R.C. 4169.07(A) to maintain the passenger tramway in its ski area: Graham v. Ohio Ski Slopes, 1998 Ohio App. LEXIS 1283 (1998).
§ 4169.08. Risks assumed by skier; responsibilities of operator and skier
(A) (1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifications; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles.
(2) Provided that the ski area operator complies with division (B)(4) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any competitor or freestyler using a freestyle terrain, which injury, death, or loss to person or property is caused by course, venue, or area conditions that visual inspection should have revealed or by collision with a spectator, competition official, ski area personnel, or another competitor or freestyler.
(3) Provided the ski area operator complies with division (B)(5) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any skier using a tubing park, which injury, death, or loss to person or property is caused by course design or maintenance or conditions that visual inspection should have revealed or by collision with another skier.
(B) The legal responsibilities of a ski area operator to a skier with respect to any injury, death, or loss to person or property resulting in any way from an inherent risk of the sport shall not be those of the common law duty of premises owners to business invitees. A ski area operator shall have, however, the following responsibilities:
(1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or are moving in the ski area;
(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;
(3) To mark, at the base of a slope or hill where skiers embark on a passenger tramway serving the slope or hill or at the top of a trail or slope, such slopes, trails, and hills with signs indicating their relative degree of difficulty. The signs must be the type that have been approved by the national ski areas association and are in current use by the industry;
(4) Prior to the use of any portion of a freestyle terrain area made available by the ski area operator, to allow each freestyler or competitor a reasonable opportunity to visually inspect the course, venue, or area of the freestyle terrain;
(5) To allow skiers using a tubing park visible access to the course.
(C) A skier shall have the following responsibilities:
(1) To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;
(2) To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall;
(3) When involved in a skiing accident in which another person is involved who needs medical or other assistance, to obtain assistance for the person, to notify the proper authorities, and to not depart from the scene of the accident without leaving personal identification;
(4) If the skier is a competitor, freestyler, or user of freestyle terrain, to assume the risk of all course, venue, or area conditions, including, but not limited to, weather and snow conditions; obstacles; course or feature location, construction, or layout; freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used;
(5) If the skier is utilizing a tubing park, to assume the risk of collision with others on the course.
HISTORY:
138 v H 775 (Eff 7-1-81); 146 v H 535. Eff 11-20-96; 151 v S 61, § 1, eff. 9-26-05.
NOTES:
Section Notes
EFFECT OF AMENDMENTS
151 v S 61, effective September 26, 2005, rewrote (A); in the introductory language of (B), deleted “Therefore” from the beginning, and inserted “or loss to person or property” and made related changes; and added (B)(4) and (5) and (C)(4) and (5).
OH Administrative Code
Notice in the event of serious accident. OAC 4101:14-1-09.
Case Notes
ANALYSIS Go to Collisions between skiersCollisions between skiers Go to Common law dutiesCommon law duties Go to Maintenance of rampMaintenance of ramp Go to Renting defective equipmentRenting defective equipment
Return to Topic ListCOLLISIONS BETWEEN SKIERS.
Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).
Return to Topic ListCOMMON LAW DUTIES.
Former R.C. 4169.08 included fences and precluded claims based on common law principles of premises liability: Stone v. Alpine Valley Ski Area, 135 Ohio App. 3d 540, 734 N.E.2d 888, 1999 Ohio App. LEXIS 5926 (1999).
R.C. 4169.08 does not abrogate the common law duty of ski resort owners to their business invitees, skiers: Shaheen v. Boston Mills Ski Resort, 85 Ohio App. 3d 285, 619 N.E.2d 1037, 1992 Ohio App. LEXIS 6080 (1992).
Return to Topic ListMAINTENANCE OF RAMP.
Where a variation in terrain occurs on a ski ramp approximately two feet from the disembarkation point and the skier must encounter the trouble spot in order to successfully disembark, the maintenance of such ramp is part of the ski operator’s responsibility for the maintenance of his passenger tramway: Graham v. Ohio Ski Slopes, 1998 Ohio App. LEXIS 1283 (1998).
Return to Topic ListRENTING DEFECTIVE EQUIPMENT.
Renting defective equipment is not an inherent risk of skiing. Anticipatory release was valid to absolve defendant for negligence in renting ski equipment, but evidence was sufficient to support finding of willful and wanton misconduct: Otterbacher v. Brandywine Ski Center, Inc., 1990 Ohio App. LEXIS 4582 (9th Dist. 1990).
§ 4169.09. Liability of operator, tramway passenger, freestyler, competitor, or skier
A ski area operator, a tramway passenger, freestyler, competitor, or skier is liable for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not liable for injury, death, or loss to person or property caused by another’s failure to fulfill any of the responsibilities required of another by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not entitled to recover for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter.
HISTORY:
138 v H 775. Eff 7-1-81; 151 v S 61, § 1, eff. 9-26-05.
NOTES:
Section Notes
Editor’s Notes
The effective date is set by section 4 of HB 775.
EFFECT OF AMENDMENTS
151 v S 61, effective September 26, 2005, rewrote the section.
Case Notes
ANALYSIS Go to Liability of skiersLiability of skiers Go to Release of liabilityRelease of liability
Return to Topic ListLIABILITY OF SKIERS.
Trial court erred when it determined that, based on the language of the statute, R.C. 4169.08 was inapplicable to collisions between skiers because, by reading § 4169.08(C) in conjunction with R.C. 4169.09, it was evident that the legislature intended that skiers would be liable for injuries caused to others while skiing. Horvath v. Ish, 194 Ohio App. 3d 8, 954 N.E.2d 196, 2011 Ohio App. LEXIS 1907, 2011 Ohio 2239, (2011), affirmed by, remanded by 2012 Ohio 5333, 2012 Ohio LEXIS 2872 (Ohio Nov. 20, 2012).
Return to Topic ListRELEASE OF LIABILITY.
The rental agreement and release of liability barred recovery for the ski lift injuries: Broome v. Ohio Ski Slopes, 108 Ohio App. 3d 86, 670 N.E.2d 262, 1995 Ohio App. LEXIS 5971 (1995).
§ 4169.10. Operator’s liability to violators of theft statute
A ski area operator is not liable for any losses or damages suffered by a person who was in violation of section 2913.02 of the Revised Code at the time that the losses or damages occurred.
HISTORY:
138 v H 775. Eff 7-1-81.
NOTES:
Section Notes
Editor’s Notes
The effective date is set by section 4 of HB 775.
Oregon Skier Safety Act
Posted: August 28, 2013 Filed under: Oregon | Tags: Alpine skiing, OR, Oregon, Outdoors, Platter lift, Recreation, Ski, Ski Resort, Skier Safety Act Leave a commentOregon Skier Safety Act
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.
Rhode Island Skier Safety Act
Posted: August 28, 2013 Filed under: Rhode Island | Tags: Alpine skiing, Rhode Island, RI, Ski, Ski Resort, Skier Safety Act, Sports Leave a commentRhode Island Skier Safety Act
General Laws of Rhode Island
TITLE 41. SPORTS, RACING, AND ATHLETICS
CHAPTER 8. RESPONSIBILITY AND LIABILITY OF SKI OPERATORS AND SKIERS
Go to the Rhode Island Code Archive Directory
R.I. Gen. Laws § 41-8-1 (2012)
§ 41-8-1. Duties of ski area operators
It shall be the duty of a ski area operator to comply with the following requirements and regulations:
(1) Whenever maintenance equipment is being employed upon any trail or slope while the trail or slope is open to the public, the ski operator shall place or cause to be placed, notice to that effect at or near the top of any tramway or surface lift servicing any trail or slope in the area being maintained.
(2) The ski area operator shall also have the duty to maintain and to identify all trail maintenance vehicles and to furnish the vehicles with flashing or rotating lights, which lights shall be operated during the time that the vehicles are working the trails or slopes, and likewise during the time the vehicle is in movement from its normal and customary storage location to any other point within the ski area.
(3) With respect to the emergency use of motor driven vehicles within the ski area, including, but not limited to, uses for purposes of removing injured or stranded skiers, or performing emergency maintenance or repair work to slopes, trails, or tramway equipment, the ski area operator shall not be required to post such signs as is required by subdivision (1), but shall be required to maintain such lighting equipment required by subdivision (2).
(4) All snowmobiles operated on the trails or slopes of the ski area shall be equipped with a lighting device, which device shall be in operation while the vehicle is in operation.
(5) The ski area shall likewise have the responsibility to mark the location of any hydrants used in snow making operations and located within or upon a slope or trail.
(6) Ski area operators shall maintain and operate, or cause to be maintained and operated, the ski areas under the control in a reasonably safe condition or manner, and shall be required to maintain a sign system on all buildings, tramways, ski trails, and slopes.
§ 41-8-2. Duties of a skier
(a) It shall be the duty of each skier to conduct himself or herself within the limitation of his or her ability, and to do no act or thing which can contribute to the injury of him or herself or others.
(b) No skier shall:
(1) Embark or disembark upon a ski lift except at a designated area and during designated hours of operation;
(2) Throw or expel any object from any tramway, ski lift, skimobile, or other similar device while riding on the device;
(3) Act in any manner while riding on a rope tow, wire rope tow, j-bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;
(4) Willfully engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift; or
(5) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.
(c) Every skier shall maintain control of his or her speed and course at all times, and shall stay clear of any snow grooming equipment, any vehicle, any lift tower, any snowmaking equipment, and any other equipment.
(d) A skier shall be the sole judge of his or her ability to negotiate any cross country track, trail, or slope.
(e) A skier shall be the sole judge of his or her ability to negotiate any downhill track, trail, or slope.
(f) Any skier who boards a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device, shall be presumed to have sufficient abilities to use the device, and shall follow any written or verbal instructions that are given regarding its use.
(g) A skier skiing downhill shall have the primary duty to avoid any collision with any other skier below him or her, and except as otherwise provided in this chapter, the responsibility for collisions by any skier with any other skier or person shall be solely that of the skier or skiers or person involved and not that of the operator;
(h) No spectators are to be allowed on areas specifically designated as skiing areas.
(i) Any person skiing on other than improved trails or slopes within the area shall be responsible for any injuries resulting from his or her action.
(j) Any skier embarking on a lift or tow without authority of the operator shall be guilty of trespassing.
(k) All skiers shall, prior to their entrance onto the trails or slopes, or embarking on any lift or tramway, have attached or on their skis, a device for the purpose of restraining or preventing a runaway ski.
(l) No skier shall ski on a slope or trail or portion thereof which has been designated closed, nor ski on other than identified trails, slopes, or trail areas.
(m) The primary responsibility for the collision with any obstruction, man made or otherwise, shall be that of the skier and not that of the operator.
(n) Any owner, manager, or employee of any ski area who finds a person in violation of this section, may first issue a verbal warning to that individual or suspend his or her recreational tramway privileges. Any person who fails to heed the warning issued by the owner or employee or agent of the operator shall forfeit his or her recreational tramway ticket and recreational tramway use privileges and be refused issuance of another ticket to the recreational tramway.
§ 41-8-3. Leaving the scene of an accident
Any person who is involved in a skiing accident and who departs from the scene of the accident without leaving personal identification or otherwise clearly identifying himself or herself before notifying the proper authorities or obtaining assistance, knowing that any other person involved in the accident is in need of medical or other assistance, shall be guilty of a misdemeanor and shall be punished by a fine of not more than two hundred dollars ($ 200).
§ 41-8-4. Severability
The provisions of this chapter are severable, and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction, the decision of the court shall not affect or impair any of the remaining provisions.
Tennessee Skier Safety Act
Posted: August 28, 2013 Filed under: Tennessee | Tags: Alpine skiing, Ski, Ski Resort, Skier Safety Act, Tennessee, Tennessee Supreme Court, TN Leave a commentTennessee Skier Safety Act
TENNESSEE CODE ANNOTATED
Title 68 Health, Safety and Environmental Protection
Safety
Chapter 114 Ski Area Safety and Liability Act
GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY
Tenn. Code Ann. § 68-114-101 (2012)
68-114-101. Short title.
This chapter shall be known and may be cited as the “Ski Area Safety and Liability Act.”
68-114-102. Chapter definitions.
As used in this chapter, unless the context otherwise requires:
(1) “Industry” means generally the activities of all ski area operators;
(2) “Passenger” means any person, while being transported or conveyed by a passenger tramway, or while waiting in the immediate vicinity for such transportation or conveyance, or while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the passengers following, or while in the act of boarding or embarking upon or disembarking from, a passenger tramway;
(3) “Passenger tramway” means those devices described in American National Standards Institute Code § B 77.1 — 1973 and supplements to the code;
(4) “Ski area” means all the ski slopes and ski trails and passenger tramways administered or operated as a single enterprise within this state;
(5) “Ski area operator” means a person or organization having operational responsibility for any ski area, including an agency of this state or a political subdivision of this state; and
(6) “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, Nordic, freestyle or other types of ski jumping and who is using skis, a sled, a tube or a snowboard.
68-114-103. Responsibility of skier and passenger.
It is recognized that Alpine or downhill skiing as a recreational sport and the use of passenger tramways associated with Alpine or downhill skiing may be hazardous to skiers or passengers, regardless of all feasible safety measures that can be taken. Therefore, each skier and each passenger has the sole responsibility for knowing the range of the skier’s or passenger’s own ability to negotiate any slope, ski trail or associated passenger tramway, and it is the duty of each skier and passenger to conduct the skier or passenger within the limits of the skier’s or passenger’s own ability, to maintain control of the skier’s or passenger’s speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner that may cause or contribute to the injury of the skier or passenger or others. Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing. The responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of the skier or skiers involved in the collision and not that of the ski area operator.
8-114-104. Violations.
No passenger or skier shall:
(1) Board or embark upon or disembark from a passenger tramway except at an area designated for that purpose;
(2) Throw or expel any object from a passenger tramway;
(3) Do any act that interferes with the running or operation of a passenger tramway;
(4) Place any object in the uphill track of a surface lift that may cause a passenger to fall;
(5) Except at designated locations, cross the uphill track of any surface lift; or
(6) Ski on a slope or ski trail that has been designated “closed” as provided by this chapter.
68-114-105. Tramways.
The ski area operator shall have the primary responsibility for the design, construction, maintenance, and inspection of any passenger tramway. All passenger tramways shall be designed, constructed, and maintained in accordance with standards of the American National Standards Institute § B 77.1 — 1973 and supplements to the standards. The operation of a passenger tramway shall be deemed not to be the operation of a common carrier.
68-114-106. Signs and designations.
It is the duty of the ski area operator to maintain the following signs and designations:
(1) Base Stations. (A) A color code is established in accordance with the following:
(i) Green circle — To designate the ski area’s least difficult trails and slopes;
(ii) Black diamond — To designate the ski area’s most difficult trails and slopes;
(iii) Blue square — To designate the ski area’s trails and slopes that fall between the green circle and black diamond designations;
(iv) Yellow triangle with red exclamation point inside with a red band around the triangle — To designate danger areas; and
(v) Octagonal shape with red border around white interior with a black figure in the shape of a skier inside with a black band running diagonally across the sign from the upper right hand side to the lower left hand side with the word “closed” beneath the emblem — To designate a closed trail or slope; and
(B) A trail board shall be maintained at one (1) or more prominent locations at each ski area displaying that area’s network of ski trails and slopes, with each trail and slope rated on the board in accordance with the color code in subdivision (1)(A) and containing a key to the code in accordance with the designations in subdivision (1)(A). The trail board shall further designate which ski trails and slopes are open and their condition; and
(2) Trails or Slopes. (A) The ski area operator shall conspicuously mark the top of each trail or slope with the appropriate symbol for that particular trail’s or slope’s degree of difficulty in accordance with this chapter. Those portions of the trails or slopes that are of extra hazardous nature or are closed shall be marked at the top with the appropriate symbol; and
(B) Whenever maintenance personnel or equipment is being employed upon any trail or slope while such trail or slope is open to the public, the ski area operator shall place, or cause to be placed, a conspicuous notice to that effect at or near the top of such trail or slope.
68-114-107. Actions against ski area operators — Insurance.
(a) Unless a ski area operator is in violation of this chapter or other state acts pertaining to ski areas, which violation is causal of the injury complained of, no action shall lie against any such operator by any skier or passenger or representative of a skier or passenger; this prohibition shall not, however, prevent the maintenance of an action against a ski area operator for negligent design construction, or operation maintenance of the passenger tramway itself.
(b) Each ski area operator shall maintain liability insurance with limits of not less than one million dollars ($1,000,000) per occurrence, except that the insurance need not be maintained with respect to passenger tramways not open to the general public, operated without charge to the users of the tramway. This exception shall not apply, however, to passenger tramways operated by schools, ski clubs and other similar organizations.
(c) No action shall be maintained against any ski area operator for injuries to any skier or passenger, unless the action is commenced within one (1) year from the time of injury; provided, that as a condition precedent to an action, the ski area operator shall be notified by registered mail within ninety (90) days of the injury as to the alleged violation of this chapter or other acts pertaining to ski areas, unless the court finds under the circumstances of the particular case that the operator or any of its employees either had actual knowledge of the injury or had a reasonable opportunity to learn of the injury within the ninety-day period, or was otherwise not substantially prejudiced by reason of not having been given actual written notice of the injury within the period; provided, that in any case where lack of written notice, actual knowledge, or a reasonable opportunity to obtain knowledge of any injury within the ninety-day period is alleged by a ski area operator, the burden of proof shall be on the operator to show that it was substantially prejudiced by the lack of written notice, actual knowledge or opportunity to obtain knowledge.
TENNESSEE CODE ANNOTATED
Title 68 Health, Safety and Environmental Protection
Safety
Chapter 121 Elevators, Dumbwaiters, Escalators, and Aerial Tramways
GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY
Tenn. Code Ann. § 68-121-101 (2012)
68-121-101. Chapter definitions.
As used in this chapter, unless the context otherwise requires:
(1) “Aerial passenger tramways” means recreational transportation of passengers on devices that are usually referred to by the following names:
(A) Reversible Aerial Tramways. That class of aerial passenger tramways and lifts in which the passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals;
(i) Single-Reversible Tramways. That type of reversible aerial tramway that has a single carrier, or single group of carriers, that moves back and forth between terminals on a single path of travel and is sometimes called “to-and-fro” aerial tramway; and
(ii) Double-Reversible Tramways. That type of reversible aerial tramway that has two (2) carriers, or two (2) groups of carriers, that oscillate back and forth between terminals on two (2) paths of travel and is sometimes called “jig-back” tramway;
(B) Aerial Lifts and Ski Mobiles. That class of aerial passenger tramways and lifts in which the passengers are transported in carriers and are not in contact with the ground or snow surface and in which the carriers circulate around a closed system and are activated by a wire rope or chain. The carriers usually make U-turns in the terminals and move along generally parallel and opposing paths of travel. The carriers may be open or enclosed cabins, cars, or platforms. The carriers may be fixed or detachable;
(i) Gondola Lifts. That type of lift where the passengers are transported in open or enclosed cabins. The passengers embark and disembark while the carriers are stationary or moving slowly under a controlled arrangement;
(ii) Chair Lifts. That type of lift where the passengers are transported in chairs, either open or partially enclosed;
(iii) Ski Mobiles. That type of lift where the passengers are transported in open or enclosed cars that ride on a rigid structural system and are propelled by a wire rope or chain; and
(iv) Similar Equipment. Lifts which utilize carrier configurations not specified in subdivision (1)(B)(i), (1)(B)(ii) or (1)(B)(iii), but do not require that the passenger remain in contact with the ground or snow surface;
(C) Surface Lifts. That class of conveyance where the passengers are propelled by means of a circulating overhead wire rope while remaining in contact with the ground or snow surface. Transportation is limited to one (1) direction. Connection between the passengers and the wire rope is by means of a device attached to and circulating with the haul rope known as a “towing outfit”;
(i) T-bar Lifts. That type of lift where the device between the haul rope and passengers forms the shape of an inverted “T,” propelling passengers located on both sides of the stem of the “T;”
(ii) J-bar Lifts. That type of lift where the device between the haul rope and passenger is in the general form of a “J,” propelling a single passenger located on the one (1) side of the stem of the “J;”
(iii) Platter Lifts. That type of lift where the device between the haul rope and passenger is a single stem with a platter or disc attached to the lower end of the stem, propelling the passenger astride the stem of the platter, or disc; and
(iv) Similar Equipment. Lifts that utilize towing device configurations not specified in subdivision (1)(C)(i), (1)(C)(ii) or (1)(C)(iii), but require that passengers remain in contact with the ground or snow surface, and conform to the general description of this subdivision (1); and
(D) Tows. That class of conveyance where the passengers grasp the circulating haul rope, a handle attached to the circulating haul rope, or attach a gripping device to the circulating haul rope and are propelled by the circulating haul rope. The passengers remain in contact with the ground or snow surface. The upward-traveling haul rope remains adjacent to the uphill track of the passengers and at an elevation that permits them to maintain their grasp on the haul rope, handle, or gripping device throughout that portion of the tow length that is designed to be traveled;
(i) Fiber Rope Tow. A tow having a fiber, natural or synthetic, haul rope; and
(ii) Wire Rope Tow. A tow having a metallic haul rope;
(2) “Alteration” means any change or addition to the equipment other than ordinary repairs or replacement;
(3) “Amusement device” means:
(A) Any mechanical or structural device that carries or conveys a person, or that permits a person to walk along, around or over a fixed or restricted route or course or within a defined area, including the entrances and exits to the device, for the purpose of giving persons amusement, pleasure, thrills or excitement. “Amusement device” includes, but is not limited to, roller coasters, Ferris wheels, merry-go-rounds, glasshouses, and walk-through dark houses;
(B) “Amusement device” also includes:
(i) Any dry slide over twenty feet (20′) in height excluding water slides; and
(ii) Any portable tram, open car, or combination of open cars or wagons pulled by a tractor or other motorized device, except hay rides, those used solely for transporting patrons to and from parking areas, or those used for guided or educational tours, but that do not necessarily follow a fixed or restricted course; and
(C) “Amusement device” does not include the following:
(i) Devices operated on a river, lake, or any other natural body of water;
(ii) Wavepools;
(iii) Roller skating rinks;
(iv) Ice skating rinks;
(v) Skateboard ramps or courses;
(vi) Mechanical bulls;
(vii) Buildings or concourses used in laser games;
(viii) All terrain vehicles;
(ix) Motorcycles;
(x) Bicycles;
(xi) Mopeds;
(xii) Go karts;
(xiii) Bungee cord or similar elastic device;
(xiv) An amusement device that is owned and operated by a nonprofit religious, educational or charitable institution or association, if the device is located within a building subject to inspection by the state fire marshal or by any political subdivision of the state under its building, fire, electrical and related public safety ordinances; and
(xv) An amusement device that attaches to an animal so that while being ridden the path of the animal is on a fixed or restricted path;
(4) “Board” means the elevator and amusement device safety board, created in § 68-121-102;
(5) “Commissioner” means the commissioner of labor and workforce development;
(6) “Complete elevator, dumbwaiter or escalator” means any elevator, dumbwaiter or escalator for which the plans and specifications and the application for the construction permit required by § 68-121-108 are filed on or after the effective date of the application of the rules and regulations adopted by the board as provided in § 68-121-103(a)(2). All other elevators, dumbwaiters and escalators shall be deemed to be existing installations;
(7) “Department” means the department of labor and workforce development;
(8) “Dormant elevator, dumbwaiter or escalator” means an elevator or dumbwaiter whose cables have been removed, whose car and counterweight rest at the bottom of the shaftway, and whose shaftway doors are permanently boarded up or barricaded on the inside, or an escalator whose main power feed lines have been disconnected;
(9) “Dumbwaiter” means a hoisting and lowering mechanism equipped with a car that moves in guides in a substantially vertical direction, the floor area of which does not exceed nine square feet (9 sq. ft.), whose total compartment height does not exceed four feet (4′), the capacity of which does not exceed five hundred pounds (500 lbs.), and that is used exclusively for carrying freight. “Dumbwaiter” does not include a dormant dumbwaiter;
(10) “Elevator” means a hoisting and lowering mechanism equipped with a car or platform that moves in guides in a substantially vertical direction and that serves two (2) or more floors of a building. “Elevator” also includes stairway inclined lifts and platform lifts for transportation of handicapped persons;
(11) “Escalator” means a moving inclined continuous stairway or runway used for raising or lowering passengers;
(12) “Freight elevator” means an elevator used primarily for carrying freight and on which only the operator and the persons necessary for loading and unloading are permitted to ride;
(13) “Moving walks” means a moving runway for transporting passengers, where the passenger transporting surface remains parallel to its direction of motion and is uninterrupted;
(14) “Operator” means a person or the agent of a person who owns or controls, or has the duty to control, the operation of an amusement device or related electrical equipment;
(15) “Owner” means a person that owns, leases, controls or manages the operations of an amusement device and may include the state or any political subdivision of the state;
(16) “Passenger elevator” means an elevator that is used to carry persons other than the operator and persons necessary for loading and unloading.
(17) “Qualified inspector” means any person who is:
(A) Found by the commissioner to possess the requisite training and experience in respect to amusement devices to perform competently the inspections required by this chapter;
(B) Certified by the National Association of Amusement Ride Safety Officials (NAARSO) to have and maintain at least a level one certification; or
(C) Is a member of, and certified by, the Amusement Industry Manufacturing and Suppliers (AIMS) and meets the qualifications established by the board;
(18) “Related electrical equipment” means any electrical apparatus or wiring used in connection with amusement devices;
(19) “Safety rules” means the rules and regulations governing rider conduct on an amusement device pursuant to § 68-121-125;
(20) “Serious incident” means any single incident where any person or persons are immediately transported to a licensed off-site medical care facility for treatment of an injury as a result of being on, or the operation of, the amusement device; and
(21) “Serious physical injury” means a patron’s personal injury immediately reported to the owner or operator as occurring on an amusement device and that results in death, dismemberment, significant disfigurement or other significant injury that requires immediate in-patient admission and twenty-four-hour hospitalization under the care of a licensed physician for other than medical observation.
Utah Skier Safety Act
Posted: August 28, 2013 Filed under: Utah | Tags: Alpine skiing, Appeal, Colorado, Public Policy, Ski, Ski lift, Ski Resort, Skier Safety Act, Sport, UT, Utah, Winter sport Leave a commentUtah Skier Safety Act
UTAH CODE ANNOTATED
TITLE 78B. JUDICIAL CODE
CHAPTER 4. LIMITATIONS ON LIABILITY
PART 4. INHERENT RISKS OF SKIING
Go to the Utah Code Archive Directory
Utah Code Ann. § 78B-4-401 (2012)
§ 78B-4-401. Public policy
The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.
§ 78B-4-402. Definitions
As used in this part:
(1) “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to:
(a) changing weather conditions;
(b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;
(c) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;
(d) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;
(e) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;
(f) collisions with other skiers;
(g) participation in, or practicing or training for, competitions or special events; and
(h) the failure of a skier to ski within the skier’s own ability.
(2) “Injury” means any personal injury or property damage or loss.
(3) “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, nordic, freestyle, or other types of ski jumping, using skis, sled, tube, snowboard, or any other device.
(4) “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, freestyle, or other type of ski jumping, and snowboarding.
(5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.
§ 78B-4-403. Bar against claim or recovery from operator for injury from risks inherent in sport
Notwithstanding anything in Sections 78B-5-817 through 78B-5-823 to the contrary, no skier may make any claim against, or recover from, any ski area operator for injury resulting from any of the inherent risks of skiing.
§ 78B-4-404. Trail boards listing inherent risks and limitations on liability
Ski area operators shall post trail boards at one or more prominent locations within each ski area which shall include a list of the inherent risks of skiing, and the limitations on liability of ski area operators, as defined in this part.
§ 72-11-201. Passenger ropeways — Purpose and scope
(1) In order to safeguard the life, health, property, and welfare of citizens while using passenger ropeways, it is the policy of the state to:
(a) protect citizens and visitors from unnecessary mechanical hazards in the design, construction, and operation of passenger ropeways, but not from the hazards inherent in the sports of mountaineering, skiing, snowboarding, mountain biking, and hiking, or from the hazards of the area served by passenger ropeways, all of which hazards are assumed by the sportsman; and
(b) require periodic inspections of passenger ropeways to ensure that each passenger ropeway meets “The United States of America Standard Institute Safety Code for Aerial Passenger Tramways,” or an equivalent standard established by rule under Section 72-11-210.
(2) (a) Except as provided in Subsection (2)(b), the committee, through the Department of Transportation, shall:
(i) register all passenger ropeways in the state;
(ii) establish reasonable standards of design, construction, and operational practices; and
(iii) make inspections as necessary to implement this section.
(b) The committee has no jurisdiction over the construction, modification, registration, or inspection of a private residence passenger ropeway.
Washington Skier Safety Act
Posted: August 28, 2013 Filed under: Washington | Tags: Alpine skiing, Occupational safety and health, Platter lift, Ski, Ski Resort, Ski tow, Skier Safety Act, WA, Washington Leave a commentWashington Skier Safety Act
ANNOTATED REVISED CODE OF WASHINGTON
TITLE 70. PUBLIC HEALTH AND SAFETY
CHAPTER 70.117. SKIING AND COMMERCIAL SKI ACTIVITY
GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY
Rev. Code Wash. (ARCW) § 70.117.010 (2012)
§ 70.117.010. Ski area sign requirements
Transferred.
§ 70.117.015. “Trails” or “runs” defined
Transferred.
§ 70.117.020. Standard of conduct — Prohibited acts — Responsibility
Transferred.
§ 70.117.025. Skiing outside of trails or boundaries — Notice of skier responsibility
Transferred.
§ 70.117.030. Leaving scene of skiing accident — Penalty — Notice
Transferred.
§ 70.117.040. Insurance requirements for operators
Transferred.
§ 79A.45.010. Ski area sign requirements
(1) The operator of any ski area shall maintain a sign system based on international or national standards and as may be required by the state parks and recreation commission.
All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed.
Entrances to all machinery, operators’, and attendants’ rooms shall be posted to the effect that unauthorized persons are not permitted therein.
The sign “Working on Lift” or a similar warning sign shall be hung on the main disconnect switch and at control points for starting the auxiliary or prime mover when a person is working on the passenger tramway.
(2) All signs required for normal daytime operation shall be in place, and those pertaining to the tramway, lift, or tow operations shall be adequately lighted for night skiing.
(3) If a particular trail or run has been closed to the public by an operator, the operator shall place a notice thereof at the top of the trail or run involved, and no person shall ski on a run or trail which has been designated “Closed”.
(4) An operator shall place a notice at the embarking terminal or terminals of a lift or tow which has been closed that the lift or tow has been closed and that a person embarking on such a lift or tow shall be considered to be a trespasser.
(5) Any snow making machines or equipment shall be clearly visible and clearly marked. Snow grooming equipment or any other vehicles shall be equipped with a yellow flashing light at any time the vehicle is moving on or in the vicinity of a ski run; however, low profile vehicles, such as snowmobiles, may be identified in the alternative with a flag on a mast of not less than six feet in height.
(6) The operator of any ski area shall maintain a readily visible sign on each rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device, advising the users of the device that:
(a) Any person not familiar with the operation of the lift shall ask the operator thereof for assistance and/or instruction; and
(b) The skiing-ability level recommended for users of the lift and the runs served by the device shall be classified “easiest”, “more difficult”, and “most difficult”.
§ 79A.45.020. “Trails” or “runs” defined
As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.
“Trails” or “runs” means those trails or runs that have been marked, signed, or designated by the ski area operator as ski trails or ski runs within the ski area boundary.
§ 79A.45.030. Standard of conduct — Prohibited acts — Responsibility
(1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
(2) No person shall:
(a) Embark or disembark upon a ski lift except at a designated area;
(b) Throw or expel any object from any tramway, ski lift, commercial skimobile, or other similar device while riding on the device;
(c) Act in any manner while riding on a rope tow, wire rope tow, j-bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;
(d) Wilfully engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift; or
(e) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.
(3) Every person shall maintain control of his or her speed and course at all times, and shall stay clear of any snowgrooming equipment, any vehicle, any lift tower, and any other equipment on the mountain.
(4) A person shall be the sole judge of his or her ability to negotiate any trail, run, or uphill track and no action shall be maintained against any operator by reason of the condition of the track, trail, or run unless the condition results from the negligence of the operator.
(5) Any person who boards a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device shall be presumed to have sufficient abilities to use the device. No liability shall attach to any operator or attendant for failure to instruct the person on the use of the device, but a person shall follow any written or verbal instructions that are given regarding the use.
(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.
(7) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.
(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.
(9) A person embarking on a lift or tow without authority shall be considered to be a trespasser.
§ 79A.45.040. Skiing outside of trails or boundaries — Notice of skier responsibility
Ski area operators shall place a notice of the provisions of RCW 79A.45.030(7) on their trail maps, at or near the ticket booth, and at the bottom of each ski lift or similar device.
§ 79A.45.050. Leaving scene of skiing accident — Penalty — Notice
(1) Any person who is involved in a skiing accident and who departs from the scene of the accident without leaving personal identification or otherwise clearly identifying himself or herself before notifying the proper authorities or obtaining assistance, knowing that any other person involved in the accident is in need of medical or other assistance, shall be guilty of a misdemeanor.
(2) An operator shall place a prominent notice containing the substance of this section in such places as are necessary to notify the public.
§ 79A.45.060. Insurance requirements for operators
(1) Every tramway, ski lift, or commercial skimobile operator shall maintain liability insurance of not less than one hundred thousand dollars per person per accident and of not less than two hundred thousand dollars per accident.
(2) Every operator of a rope tow, wire rope tow, j-bar, t-bar, or similar device shall maintain liability insurance of not less than twenty-five thousand dollars per person per accident and of not less than fifty thousand dollars per accident.
(3) This section shall not apply to operators of tramways that are not open to the general public and that are operated without charge, except that this section shall apply to operators of tramways that are operated by schools, ski clubs, or similar organizations.
§ 79A.45.070. Skiing in an area or trail closed to the public — Penalty
A person is guilty of a misdemeanor if the person knowingly skis in an area or on a ski trail, owned or controlled by a ski area operator, that is closed to the public and that has signs posted indicating the closure.
Marketing Makes Promises that Risk Management (or in this case an insurance policy) must pay for.
Posted: August 12, 2013 Filed under: Colorado, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Accredited, AEE, BOEC, Breckenridge Outdoor Education Center, Colorado, Denver, Fraud, Magistrate, Misrepresentation, Release, Sit-Ski, Ski, skiing, Standards, Tether, United States district court 1 CommentThe release stopped the claims, which were thought out and tried to exploit the “accreditation” and “standards” created by a third party association.
Squires, v. Breckenridge Outdoor Education Center, 2013 U.S. App. LEXIS 9249 (10th Cir. 2013)
Plaintiff: Kimberly N. Squires
Defendant: Breckenridge Outdoor Education Center
Plaintiff Claims:
(1) The Release is as an invalid exculpatory agreement;
(2) Plaintiff’s decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107;
(3) Release was voidable because it was procured through fraud
Defendant Defenses: Release
Holding: for the defendant, the release was upheld
This case has been working its way through the courts for five years. The plaintiff was a legally blind child with cerebral palsy and cognitive delays. Her mother signed the necessary documentation to take a trip west with Camp Fire USA. Camp Fire USA contracted with the Breckenridge Outdoor Education Center (BOEC) to provide five days of skiing, a rope’s course and snow tubing.
The plaintiff was in a bi-ski which has an instructor holding tethers behind the skier. The BOEC instructor and the plaintiff were on their second run of the day. A third party skier lost control and skied into the tethers causing the BOEC instructor to lose the tethers. The plaintiff went down the hill unrestrained into a group of trees sustaining her injuries.
The plaintiff sued in Federal District Court located in Denver. A magistrate based upon a motion filed by the defendant dismissed the plaintiff’s negligence claim based on a release signed by the Plaintiff and her mother. The defendant’s motion also argued there was no evidence to support a gross negligence claim, which the magistrate did not deny.
The case proceeded to trial on the gross negligence claim. The jury returned a verdict for the defendant. The plaintiff then appealed the dismissal of the negligence claim based upon the release.
A magistrate is a quasi-judge. Magistrates in the Federal Court System are not appointed by the President and approved by the Senate, as all federal court judges are; but are appointed by the Chief Judge of the Federal District Court. The magistrate’s powers come from specific powers given to the magistrate by the judge who assigns a case to a magistrate or from an overall order from the Chief Judge of the court. Normally, a judge appoints a magistrate to handle all pre-trial matters. This frees up the judge to handle trials and those issues that may be appealed from the magistrate.
Summary of the case
The plaintiff appealed three issues concerning the validity of the release:
(1) the Release is as an invalid exculpatory agreement;
(2) [Plaintiff’s mother’s] decision to sign the Release was not voluntary and informed, as required by Colorado Revised Statute Section 13-22-107; [statute allowing a parent to sign away a child’s right to sue] and
(3) to the extent the Release is otherwise enforceable; it is, nevertheless, voidable because it was procured through fraud.
The 10th Circuit Court of Appeals went through a fairly in-depth analysis of release law in Colorado in making its decision. The court first looked into the requirements for a release to be valid under Colorado law. Releases are disfavored under Colorado law; however, they are not void. To be valid a Colorado Court must consider four factors:
(1) the existence of a duty to the public;
(2) the nature of the service performed;
(3) whether the contract was fairly entered into; and
(4) whether the intention of the parties is expressed in clear and unambiguous language
It was the fourth factor, whether the intent of the parties is set forth in clear and unambiguous language that is usually at issue. That means the language is clear and understandable so that the plaintiff when reading the document knew he or she was giving up their right to sue or recover for their injuries. The factor does not require the specific use of the word negligence and/or breach of warranty under Colorado law. However, the language of the release must express that the “intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”
Colorado courts look at the actual language of the release for “legal jargon” length, complication any likelihood of confusion or failure of the plaintiff to recognize the full extent of the release provisions. The court found that BOEC’s release met all of the requirements and was valid.
The plaintiff argued that the release failed to tell them that the plaintiff would be using a bi-ski and failed to disclose specific risks of this type of adaptive skiing. The court found that Colorado law did not require releases to refer to the specific activity that injured the plaintiff. Rather a release bars a claim if the release “clearly reflects the parties’ intent to extinguish liability for that type of claim.”
Note: the relaxed language allowed under Colorado law is not the same in other courts.
The plaintiff also developed a novel argument, which I have touched on before.
Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant.
Many times a third party or even another participant is the reason for the plaintiff’s injury. I write about injured parties suing other guests or third parties, such as skier v. skier collisions. Although the complaint does not name the outdoor recreation provider, specifically as a defendant, it does bring them in tangentially to a lawsuit. Here, the plaintiff argued the release failed because it did not notice the plaintiff of the risks brought to skiing by third parties.
However, the argument was not properly preserved or argued in the lower court so this court did not look at the argument. Appellate courts only will hear arguments that have been heard or argued in the lower court. Brand new arguments are ignored on appeal. It is important to argue everything you can in the lower court, to preserve all issues for appeal. This works both for claims of the plaintiff or defenses of the defendant.
The next argument, was there was not enough information in the release to satisfy the requirements of the statute which allows a parent to sign away a minor’s right to sue (C.R.S. 13-22-107). The plaintiff argued that because the risks of skiing in a bi-ski were not understood by the mother then the release should fail.
The court looked at two prior cases in Colorado that had looked at this issue: Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010) and Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) which I discuss in Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele and Release stops suit for falling off horse at Colorado summer Camp.
Because the release did not state the risks of the activity, the court had to decide if it could look at extrinsic (other) evidence. The court in Hamel, allowed the defendant to show that prior experience of the parent in sending her daughter to camp and knowledge of other people who had been injured horseback riding was enough to show the mother knew the risks.
The court then allowed the knowledge of the mother and the letter sent with the release by BOEC to show the mother knew the general risks of skiing.
The final issue was the Fraudulent Inducement claim. The letter said the following:
(1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.
The mother made the following statements concerning what she believed based upon the letter.
Rather, she [plaintiff] relies on her mother’s statements that she “believed that BOEC was an accredited program,” and “that they had an [sic] accredited certified instructors that would manage a safe program.”
(“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).)
Although BOEC may or may not have been accredited by the AEE, the issue was the AEE did not have standards for skiing or adaptive skiing. The plaintiff argued that the letter, on one side of the release contradicted the release which was on the other side of the paper.
Add to the issue that BOEC admitted that it did not have what it advertised.
BOEC representative and Ski Program Director Paul Gamber testified that on the day of the Accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. Ski Program Director, Jeffrey Inouye, testified that the AEE accreditation related to programs other than the adaptive [*30] ski program that Ms. Squires attended.
Marketing makes promises that Risk Management has to pay for.
The plaintiff argued that there was fraud in the inducement and because BOEC had advertised standards, BOEC did not have. On top of that the plaintiff argued that because BOEC did not have standards as they advertised BOEC was also misleading the plaintiff.
Ms. Squires argues that based upon the lack of written safety standards, “it is not a stretch to conclude that the adaptive skiing program was not conducted in a manner consistent with the highest standards of the AEE, contrary to the representations made by BOEC in its Greetings Letter.”
The letter and marketing of BOEC were enough to establish a fraud claim.
To establish fraud, a plaintiff has to prove that (1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.
The release was presented to the plaintiff’s mother along with a “LETTER TO STUDENTS, PARENTS AND GUARDIANS.” The letter made several statements which the plaintiff brought to the attention of the court, which created legal issues that in many courts in other states, would have found for the plaintiff. Some of the parts of the letter were:
All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.
Your ski lesson or course will involve risk, which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all risks.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation.
The plaintiff could not prove that she had relied on the misstatements of BOEC. On top of the necessary requirement that there be reliance, the fraud or action of BOEC must be intentional.
Ms. Squires has not produced any evidence that BOEC made the alleged misrepresentations with the intent to deceive. For failure to demonstrate this element, Ms. Squires’ argument that the Release is voidable based on material misrepresentation and fraud in the inducement must fail.
Because the fourth element could not be provided the fraud claim was dismissed.
The final argument made by the plaintiff was the actions of BOEC were willful and wanton. The statute Colo. Rev. Stat. § 13-22-107(4) specifically prohibited releases signed by parents based to stop willful and wanton conduct.
Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Court defined willful and wanton conduct by relating the conduct to gross negligence.
“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.” “Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness.” (“Conduct is willful and wanton if it is a dangerous course of action that is consciously chosen with knowledge of facts, which to a reasonable mind creates a strong probability that injury to others will result.”)
However, here again the plaintiff failed to show conduct that was purposeful or reckless. The court found the record was “devoid of sufficient evidence to raise a factual issue” at trial. Finding that the court held that claim was not met by the plaintiff.
So Now What?
The release in this case met the requirements of Colorado law. However, most other states, the release would not have been sufficient to stop the claims of the plaintiff. Besides, few states allow a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
BOEC does great work and does a good job. This like most facts giving rise to litigation are rare, even very rare. However, your release needs to be written to cover everything you possibly can. You can include a prohibition against injuries or claims caused by third parties. Would the outcome of this case been different if the third party who skied into the tethers been another BOEC student or instructor?
Releases can also be used to educate. If you do a good job of describing the risks in the release, then parents cannot make valid decisions, on whether or not they want to risk your kid with them. The defendant should have done a better job of explaining the risks of all activities within the program.
It is risky to rely upon outside information to prove knowledge of a release, unless you can prove the person saw and knew the information and have that proof in the release. This creates a 2-step process. 1.) You must prove you educated the customer or guest and 2.) You must prove the guest or customer was educated. The easiest way is to place this information on your website and then have your release reference the information.
Marketing makes promises that Risk Management must pay for. The advertising and statements made by the defendant in this case in many other jurisdictions would have gone the other way. Seriously, to make statements about awards, accreditation, or standards that do not exist are a great way to void a release and in many states increase the damages you may pay.
Other Cases: Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234 (Dist Colo 2011)
Other articles where standards played a part in the decision in a negative way.
ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp
Plaintiff uses standards of ACCT to cost defendant $4.7 million
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent
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Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)
Posted: August 12, 2013 Filed under: Colorado, Legal Case, Skiing / Snow Boarding | Tags: Accredited, AEE, BOEC, Breckenridge Outdoor Education Center, Colorado, Denver, Fraud, Magistrate, Misrepresentation, Release, Sit-Ski, Ski, skiing, Standards, Tether, United States district court Leave a commentSquires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)
KIMBERLY N. SQUIRES, Plaintiff – Appellant, v. BRECKENRIDGE OUTDOOR EDUCATION CENTER, Defendant – Appellee.
No. 12-1199
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
715 F.3d 867; 2013 U.S. App. LEXIS 9249
May 7, 2013, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No.1:10-CV-00309-CBS-BNB).
Squires v. Goodwin, 829 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 129234 (D. Colo., 2011)
COUNSEL: Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for Plaintiff – Appellant.
David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the brief) of Grund ” Dagner, P.C., Denver, Colorado, for Defendant – Appellee.
JUDGES: Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
OPINION BY: McKAY
OPINION
Plaintiff Kimberly Squires filed this diversity action against Defendant Breckenridge Outdoor Education Center asserting claims for negligence and gross negligence following a ski accident in which she was injured. The magistrate judge granted Defendant’s motion for summary judgment in part, concluding Plaintiff’s mother, Sara Squires, had validly released any claim for negligence against Defendant by signing an acknowledgment of risk and release of liability. Plaintiff now appeals, arguing summary judgment was inappropriate because the Release [**2] is unenforceable for three reasons: (1) the Release is as an invalid exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not voluntary and informed, as required by [*870] Colorado Revised Statute Section 13-22-107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless voidable because it was procured through fraud.
Background
In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado. Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-profit organization dedicated to providing children, including children with disabilities, with opportunities and experiences for growth. Camp Fire USA had contracted with Defendant for a five-day wilderness program that included skiing, a ropes course, and snow tubing.
Before the trip, Defendant sent documents regarding the trip to Camp Fire USA, which in turn circulated them to the participants’ parents, including Mrs. Squires. The documents included a “Letter to Students, Parents and Guardians” (App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment of Risk & Release [**3] of Liability” (App. at 210 (capitalization omitted)).1 The Letter states, in pertinent part:
LETTER TO STUDENTS, PARENTS AND GUARDIANS
Greetings from Breckenridge! The BOEC staff looks forward to having you, your child or your family member join us on a course and would like to share the following information about who we are, what we do and the risks involved.
The Breckenridge Outdoor Education Center (BOEC), a non-profit organization in operation since 1976, provides outdoor adventure programs for people of all abilities. We offer programs for groups and individuals. All courses are tailored to the specific goals and abilities of our students.
. . . .
All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards. All activities offered are designed to pose appropriate challenges for students. These challenges provide a medium for adventure, learning and personal growth. Your ski lesson or course will involve risk, [**4] which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all [*871] risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure or activity is unclear to you.
While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledg[]ment of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places.
If you have any questions or comments, please do not hesitate to contact us. We welcome your suggestions and feedback.
(App. at 209.)
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
1 It is somewhat unclear whether the Release signed by Mrs. Squires was presented to her as a separate document from the Letter or as a single document [**5] with the Letter printed on one side and the Release printed on the reverse. The Letter itself refers to the Release “on the reverse side of this letter.” (App. at 209.) Plaintiff likewise initially represented the Release appeared on the reverse of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . . .).) However, during oral argument, Plaintiff’s counsel maintained this was a disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are standalone copies, and one copy happens to have a bleed-over language from the cover letter. It’s not clear . . . that that’s how that actually occurred when the Release was given to [Mrs. Squires] for signature.”) It is undisputed, however, that the Release the director of Camp Fire USA sent to the participants “included the cover letter that explained the waiver” (App. at 207), and that the two documents were sent as a single attachment (App. at 404, 407, 408).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
The accompanying Release provides:
ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)
In consideration of being allowed to participate in any way in Breckenridge Outdoor [**6] Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:
1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.
2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical [**7] facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.
(App. at 210.)
Plaintiff and her mother signed the Release on January 13, 2008. On that date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge and participation in Defendant’s program [*872] would include skiing, although she claims she was unaware of the precise equipment and methods her daughter would be using. Once in Breckenridge, Plaintiff was [**8] paired with a BOEC instructor and equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was injured when another, unrelated, skier lost control and skied into the tethers connecting Plaintiff and her instructor. The force of the collision caused the instructor to lose control of the tethers, and Plaintiff continued unrestrained down the trail and into a group of trees. She was injured when her bi-ski collided with a tree.
Following the accident, Plaintiff filed this action claiming Defendant’s negligence and gross negligence caused her injuries. Defendant moved for summary judgment, arguing the Release barred Plaintiff’s negligence claim and there was no evidence to support her gross negligence claim. The magistrate judge granted summary judgment in favor of Defendant on Plaintiff’s negligence claim, concluding Plaintiff’s mother had executed an enforceable exculpatory agreement that clearly and unambiguously expressed the parties’ intent to extinguish Defendant’s liability, and her decision to do so was voluntary and informed. The magistrate judge, however, denied Defendant’s motion on Plaintiff’s gross negligence claim. This claim proceeded to a jury, which [**9] found Defendant not liable. Plaintiff now appeals the grant of summary judgment on her negligence claim.
Discussion
HN1
“We review a district court’s decision to grant summary judgment de novo, applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (internal quotation marks omitted). Summary judgment is appropriate if “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). Colorado law applies in this diversity case.
I. Enforceability of the Release
Plaintiff argues the Release is unenforceable and, therefore, does not bar her negligence claim. She reasons that the Release is invalid under the four-part test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her mother did not make an informed decision, as required by Colorado Revised Statute Section 13-22-107.
A. Validity Under Jones
HN2In Colorado, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are not necessarily void.” Id. at 784. In [**10] determining whether an exculpatory agreement is valid, Colorado courts consider four factors: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. Plaintiff challenges only the magistrate judge’s conclusion on the fourth factor.
Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach of warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Heil Valley, 784 P.2d at 785. Rather, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. In making this determination, [*873] Colorado courts examine “the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).
The Release signed by Plaintiff and her [**11] mother clearly and unambiguously waives any negligence claims Plaintiff might have brought against Defendant. The Release begins by indicating it is signed “[i]n consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities.” (App. at 104.) It then warns that “it is impossible for the BOEC to guarantee absolute safety,” and identifies the potential risk of “loss or damage to personal property, injury, permanent disability, [and] fatality.” (Id.) The Release concludes, after only five short paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).) We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims I might state . . . including those claims based on negligence or breach of warranty.’ . . . There is nothing ambiguous about this portion [**12] of the agreement.” (first alteration in original)).
Plaintiff, however, contends the Release does not satisfy the fourth Jones factor because it failed to include that Plaintiff would be skiing using a bi-ski and failed to disclose specific risks associated with this form of adaptive skiing. She argues that Colorado law requires the Release to identify the specific activity being engaged in and describe specific associated risks. In support of this position, Plaintiff quotes from several other releases that have been upheld and claims it was their adequate detailing of risks that led the courts to conclude they were valid under the fourth Jones factor. However, even though the releases quoted by Plaintiff contain more detailed descriptions of the associated risks, their validity did not turn on this fact. Notably, none of the cases Plaintiff relies on evaluated the sufficiency of the description of the risks.
Contrary to Plaintiff’s argument, HN3Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured. See Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (concluding a release that did not mention [**13] the specific activity in which the plaintiff was injured was nevertheless valid because it “unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-75 (10th Cir. 1997) (concluding a release that did not include the specific activity and referred only to “the activity I am about to voluntarily engage in” was valid under Jones). Nor does it require “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., No. 96-1438, 1997 U.S. App. LEXIS 11807, 1997 WL 265093 (10th Cir. May 20, 1997) (unpublished) (citation omitted). The Release clearly reflects precisely such an intent—Plaintiff and her mother agreed, “[i]n consideration of being [*874] allowed to participate in . . . [Defendant’s] programs, and related events and activities” to “release [Defendant] from any and all claims . . . and causes [**14] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a [BOEC] activity.” (App. at 104.)
Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant. Plaintiff raises her first theory of ambiguity for the first time on appeal. Because this argument was not properly preserved, we do not consider it. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (HN4“[A] party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second theory of ambiguity, we agree with the magistrate judge’s conclusion that the Release is not reasonably susceptible to her interpretation, which strains logic. Plaintiff specifically argues the portion of the Release that releases Defendant from liability is rendered ambiguous by the following sentence: “I [**15] understand that I share the responsibility for safety during all activities, and I assume that responsibility.” (App. at 104.) She contends that by “discussing two alternate allocations of risk in the same document, the Release does not clearly and unambiguously express the intent of the parties, and thus, is unenforceable.” (Appellant’s Opening Br. at 23.) However, these two provisions create no such ambiguity. The sentence on which Plaintiff relies clearly expresses the participant’s agreement to share in the responsibility of participating in a safe manner, whereas the release provision clearly expresses the participant’s intent to release Defendant from liability. As the magistrate judge concluded, the two are not mutually exclusive, and the first provision makes it no less clear that Plaintiff’s mother intended to release Defendant from liability for any negligence claim.
Because the Release contains clear and unambiguous language demonstrating Plaintiff’s mother intended to release any negligence claims Plaintiff might have against Defendant, it is valid and enforceable under Jones.
B. Informed Decision Under Colorado Revised Statute Section 13-22-107
We turn then to whether Mrs. [**16] Squires’s consent to the Release was voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was not because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis.
In 2002, the Colorado Supreme Court held “that Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence.” Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107(3). The following year, the General Assembly superseded Cooper through enactment of Section 13-22-107(3). Under this section,HN5 “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute “declare[s] that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010). “So long as the decision is voluntary and informed, the decision should be given [**17] the same dignity as decisions [*875] regarding schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. § 13-22-107(1)(a)(V).
The Colorado Court of Appeals has “assume[d] that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but required something more for the waiver of a minor’s prospective negligence claims.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) (citation omitted). In addition to the Jones factors, “[t]he General Assembly required that the consent to waiver by a parent be ‘voluntary and informed.'” Id. “A parent’s decision is informed when the parent has sufficient [*876] information to assess the potential degree of risks involved, and the extent of possible injury.” Id.
Since the enactment of Section 13-22-107, the Colorado Supreme Court has not addressed whether a release satisfies the voluntary and informed requirement of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from the Colorado Court of Appeals only as they may [**18] aid our ability to predict how the Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co., 396 F. App’x 496, 502 n.14 (10th Cir. 2010).
The Colorado Court of Appeals has twice considered whether a parent’s consent to release prospective negligence claims on behalf of a minor child was voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first occasion, the Colorado Court of Appeals determined it “need not set forth . . . precisely how much information is required for a parental release to satisfy the statute” because “[t]here is no information in [the] one-page registration form describing the event activities, much less their associated risks.” Wycoff, 251 P.3d at 1264. There, the plaintiff was injured while being towed in an innertube behind an ATV on a frozen lake as part of her participation in a three-day event called “Winterama 2005.” Id. at 1263. Before attending the event, the plaintiff’s mother signed a one-page registration and information form, which contained a purported release in the following paragraph:
I give permission for my child to participate in . . . Winterama 2005 and all activities associated with it. I further give consent [**19] for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.
Id. (emphasis and correction in original). Although the plaintiff knew the Winterama activities would include riding on an ATV-towed innertube, her mother did not. The court concluded that the mother’s waiver was not informed because the registration and information form did “not indicate what the activities would involve and certainly d[id] not suggest they would include ATV-towed inner-tube excursions around a frozen lake.” Id. at 1264. As a result, there was no information from which the plaintiff’s parents could “assess the degree of risk and the extent of possible injuries” from her participation in Winterama. Id. at 1265.
Shortly after the Wycoff decision, the Colorado Court of Appeals again addressed whether a parent’s consent to release prospective negligence claims on behalf of her child was informed. Borrowing from the language used in Wycoff, the court began by stating, HN6“A parent’s [**20] decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” Hamill, 262 P.3d at 952 (citing Wycoff, 251 P.3d at 1265). In addressing the degree of risk, the court concluded the plaintiff’s mother was sufficiently informed about the risks involved in horseback riding, the activity in which the plaintiff was injured, because she “knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity.” Id. at 953. In reaching this conclusion, the court first relied on the undisputed fact that the plaintiff’s mother “knew the activities [the camp] offered,” because her daughter “had attended [the camp] and ridden the camp horses for two years before the accident.” Id. at 952. In addition, “[t]he agreement clearly indicated that horseback riding was an activity available to campers.” Id. The agreement further identified some of the “risks associated with participation in any camping activities,” and emphasized that “a complete listing of inherent and other risks is not possible” and there are even “risks which cannot be anticipated.” Id. at 949 [**21] (emphasis omitted). The court finally considered the fact that the plaintiff’s mother “never contacted [the camp] to discuss the release form, and had no questions about the language of the release form when she signed it.” Id. at 953. In light of all of this evidence, the court concluded the plaintiff’s mother was adequately informed of the risks involved with horseback riding. The fact that she “may not have contemplated the precise mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not create a genuine issue of material fact.” Id. The relevant inquiry was whether the plaintiff’s mother was aware the plaintiff would be riding horses and was advised there were risks associated with that activity, which she was.
The court then turned to whether the plaintiff’s mother was provided with sufficient information “to assess the extent of possible injuries to [her daughter].” Id. In making this determination, the court again considered both the language of the release and the plaintiff’s mother’s independent knowledge and experience. The release contained broad language waiving “any claims of liability, for any injury, even death.” Id. (internal quotation marks omitted). [**22] The plaintiff’s mother was further aware that Christopher Reeve, whom she knew personally, had been injured falling off a horse, and was therefore “aware that there were significant risks associated with horseback riding.” Id. The court thus concluded that the agreement adequately disclosed the extent of potential injuries; it “did not need to include an exhaustive list of particularized injury scenarios to be effective.” Id.
Before turning to whether Plaintiff’s mother’s consent to release prospective negligence claims against Defendant was informed, we must first address the scope of the evidence we may consider in making this determination. The Colorado courts have yet to specifically address this issue. In Wycoff, the court “assume[d] for purposes of th[e] case that a facially deficient exculpatory contract could be cured by extrinsic evidence.” 251 P.3d at 1264. Relying on this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V) must be limited to the four corners of the Release unless we first determine that the Release itself is facially deficient, in which case the Release would be invalid under Jones. Defendant, on the other hand, maintains we may [**23] properly consider the Letter that accompanied the Release as well as Mrs. Squires’s actual knowledge on the day she signed the Release.
[*877] We predict the Colorado Supreme Court would likely follow the approach advocated by Defendant and adopted by the Colorado Court of Appeals in Hamill—in determining whether a parent’s consent to release prospective negligence claims is voluntary and informed, the parent’s actual knowledge and the information provided in connection with the release should be considered in addition to the language of the release itself. Unlike the fourth factor of the common-law Jones test, which focuses on whether the agreement itself expressed the parties’ intention in clear and unambiguous terms, the focus of the voluntary and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s decision. If we were to limit our review to the language of the Release itself, we would not be in a position to adequately evaluate whether the parent’s decision was informed. HN7To “give[] effect to the General Assembly’s intent in enacting” Section 13-22-107, Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003)—that a parent’s decision to release his or her child’s prospective negligence [**24] claims be honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. § 13-22-107(1)(a)(V)—we must be able to consider the relevant information the parent had and was provided in order to make that decision. Indeed, were we to limit our review to the language of the Release itself, it would put the General Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of recreational activities would be required to incorporate all relevant information they supplied to parents within the release itself while simultaneously ensuring the release is not “inordinately long or complicated,” Heil Valley, 784 P.2d at 785. To avoid such a result and give the fullest effect to the General Assembly’s intent, we consider not only the language of the Release, but also the information Defendant provided to Plaintiff and Mrs. Squires in connection with the Release as well as Mrs. Squire’s actual knowledge on the date she signed the Release.
Considering this evidence, we conclude Mrs. Squires’s decision to release Plaintiff’s prospective negligence claims against Defendant was informed. Mrs. Squires had sufficient information from which to evaluate the degree of risk Plaintiff [**25] faced. She admittedly knew “when she signed the document . . . that her daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the students and their parents specifically referred to “[y]our ski lesson” (App. at 209), and the accompanying participant application identified “Sit-Down” and “Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson . . . will involve risk, which may be greater than most people encounter in their daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for BOEC to guarantee absolute safety,” and warned that in addition to the “risks during outdoor programs,” including “falling,” “there may be other risks not known . . . or not reasonable foreseeable at this time.” (App. at 210.) After receiving this information, Mrs. Squires did not contact Defendant to discuss the Release and did not inquire as to the risks that were going to be involved with the ski trip. Although Mrs. Squires “may not have contemplated the precise mechanics of her daughter’s fall,” including the precise mechanics of skiing with a bi-ski, this fact “does [**26] not invalidate the release.” Hamill, 262 P.3d at 953. Like the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she was advised that there were risks, known and unknown, associated with the activity.” Id.
Mrs. Squires likewise had sufficient information from which to assess the extent [*878] of possible injuries to Plaintiff. The Release contained broad language releasing “any and all claims,” “of every nature,” “whether resulting from negligence or otherwise.” (App. at 210.) The Release additionally specifically warned of the possibility of “injury, permanent disability, fatality . . . and severe social or economic losses that may result from any such incident.” (Id.) Contrary to Plaintiff’s argument, the Release “did not need to include an exhaustive list of particularized injury scenarios,” such as the possibility of colliding with a tree after the instructor lost control of the tethers, “to be effective.” Hamill, 262 P.3d at 953.
We conclude the Release satisfies both the Jones test and the voluntary and informed requirement of Section 13-22-107 and is, therefore, enforceable.
II. Fraudulent Inducement
Plaintiff argues in the alternative that even if the Release is [**27] enforceable, it should nevertheless be set aside because it was procured through fraud.2 HN8“A release is an agreement to which the general contract rules of interpretation and construction apply. Like any contract, a release procured through fraud can be set aside.” Chase v. Dow Chem. Co., 875 F.2d 278, 281 (10th Cir. 1989) (internal quotation marks and citation omitted). To establish fraud, a plaintiff must prove
(1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.
Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010). Furthermore, “[t]he misrepresentation must be made with the intent to deceive.” Club Valencia Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1026 (Colo. App. 1985).
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
2 Plaintiff first alluded to this argument in the hearing on Defendant’s motion for summary judgment. [**28] The magistrate judge then allowed supplemental briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant argued Plaintiff’s late reliance on the fraud defense “is neither proper nor excusable.” (App. at 378.) In its order, the magistrate judge considered Plaintiff’s fraud defense without discussing its timeliness or procedural propriety. Defendant has not argued on appeal that the magistrate judge erred in considering Plaintiff’s argument. We therefore have no occasion to address whether Plaintiff’s belated fraud defense was properly considered in the first instance.
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Plaintiff contends the Letter, which accompanied the Release, contained three fraudulent misrepresentations: (1) “All of [Defendant’s] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.” (App. at 209.) However, Plaintiff has offered no evidence that statements two and three were false; that is, Plaintiff has [**29] pointed to no evidence that Defendant, generally, was not accredited by AEE or that AEE does not perform the functions described in statement three. Plaintiff’s argument then, hinges on the allegedly fraudulent misrepresentation in the first statement.
Plaintiff maintains the first statement constitutes a fraudulent misrepresentation because AEE does not have standards for [*879] adaptive skiing, and Defendant’s adaptive ski program is therefore at least one activity that is not “conducted in a manner consistent with the highest standards, as defined by [AEE].” (Id.) Accepting, without deciding, that this statement constitutes a fraudulent material misrepresentation, Plaintiff has failed to provide any evidence that Mrs. Squires relied on this misrepresentation in deciding to sign the Release. Plaintiff points to no evidence that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE standards. Rather, she relies on her mother’s statements that she “believed that BOEC was an accredited program” (App. at 354), and “that they had an [sic] accredited certified instructors that would manage a safe program” (App. at 357). (See [**30] also App. at 353 (“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).) These statements, even when viewed in the light most favorable to Plaintiff, do not support her position that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE’s standards.3 Notably, Mrs. Squires made no mention of AEE or its standards when discussing her beliefs about Defendant’s program. Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a material misrepresentation made by Defendant in the Letter, the magistrate judge properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently induced to sign the Release.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
3 While Mrs. Squires’s testimony may suggest she believed that Defendant’s adaptive ski program was accredited by AEE, the Letter made no such representation. Rather, this purported representation was inferred by Mrs. Squires from the three statements listed above in connection with the representation that “all courses are [**31] tailored to the specific goals and abilities of [the] students, all activities offered are designed to pose appropriate challenges for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s misunderstanding of Defendant’s Letter does not excuse her from the consequences of signing the Release. See Shoels v. Klebold, 375 F.3d 1054, 1070 (10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for Appellants’ acceptance, and so they cannot evade the normal limitations on relief from the consequences of their mistake.”).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Conclusion
For the foregoing reasons, we AFFIRM the magistrate judge’s order granting summary judgment to Defendant on Plaintiff’s negligence claim.
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Nevada Skier Safety Act
Posted: July 22, 2013 Filed under: Nevada, Ski Area, Skiing / Snow Boarding | Tags: Law, Nevada, Nevada Skier Safety Act, Recreation and Sports, Ski, ski area, Ski Area Safety Act, Ski Resort, Skier, Snow, Snowboard, Snowboarder Leave a commentNevada Skier Safety Act
1.1 NEVADA REVISED STATUTES ANNOTATED
TITLE 40. Public Health And Safety.
CHAPTER 455A. Safety of Participants in Outdoor Sports.
Skiers and Snowboarders
GO TO NEVADA STATUTES ARCHIVE DIRECTORY
Nev. Rev. Stat. Ann. § 455A.023 (2012)
Table of Contents
455A.023. “Chair lift” defined. 3
455A.027. “Operator” defined. 3
455A.030. “Passenger” defined. 3
455A.083. “Snow recreation area” defined. 4
455A.085. “Snowboarder” defined. 5
455A.087. “Snowboarding” defined. 5
455A.090. “Surface lift” defined. 5
455A.110. Duties of skiers and snowboarders. 6
455A.130. Signs at chair lifts: Requirements; inspection. 7
455A.150. Illumination of signs at night. 8
455A.180. Revocation of license or privilege to engage in skiing or snowboarding. 10
455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter. 10
455A.010. Short title.
NRS 455A.010 to 455A.190, inclusive, may be cited as the Skier and Snowboarder Safety Act.
455A.020. Definitions.
As used in NRS 455A.010 to 455A.190, inclusive, unless the context otherwise requires, the words and terms defined in NRS 455A.023 to 455A.090, inclusive, have the meanings ascribed to them in those sections.
455A.023. “Chair lift” defined.
“Chair lift” means a device, except for an elevator, that carries, pulls or pushes a person along a level or inclined path to, from or within a snow recreation area by means of a rope, cable or other flexible element that is driven by an essentially stationary source of power.
455A.027. “Operator” defined.
“Operator” means a person, or a governmental agency or political subdivision of this State, who controls or operates an area where persons engage in skiing or snowboarding.
455A.030. “Passenger” defined.
“Passenger” means a person who utilizes a chair lift for transportation.
455A.035. “Patrol” defined.
“Patrol” means agents or employees of an operator who patrol the snow recreation area.
455A.040. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.083.
455A.050. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.023.
455A.060. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.035.
455A.070. “Skier” defined.
“Skier” means a person who engages in skiing in a snow recreation area.
455A.075. “Skiing” defined.
“Skiing” means the act of using skis to move across snow-covered ground.
455A.080. Transferred.
NOTES: Editor’s note. This section is now compiled as 455A.027.
455A.083. “Snow recreation area” defined.
“Snow recreation area” means the slopes, trails, runs and other areas under the control of an operator that are intended to be used for skiing, snowboarding or for the observation of the sports.
455A.085. “Snowboarder” defined.
“Snowboarder” means a person who engages in snowboarding in a snow recreation area.
455A.087. “Snowboarding” defined.
“Snowboarding” means the act of using a snowboard to move across snow-covered ground.
455A.090. “Surface lift” defined.
“Surface lift” means a chair lift designed for skiers or snowboarders to remain in contact with the ground or snowy surface during transportation.
455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited.
A skier or snowboarder shall not:
1. Embark upon a chair lift:
(a) When the skier or snowboarder knows that he or she has insufficient knowledge or physical ability to use the chair lift safely; or
(b) That is posted as closed or not in operation;
2. Purposefully embark upon or disembark from a chair lift except at an area designated for such a purpose or at the direction and under the direct supervision of an authorized agent or employee of an operator;
3. Toss, throw or cast or intentionally drop, expel or eject an object from a chair lift;
4. Toss, throw or cast an object in the direction of a chair lift;
5. Fail or refuse to comply with:
(a) Reasonable instructions given to the skier or snowboarder by an authorized agent or employee of an operator regarding the use of a chair lift; or
(b) A sign posted pursuant to NRS 455A.130 or 455A.140;
6. Place any object in the uphill path of a surface lift;
7. Conduct himself or herself in a manner that interferes with the safe operation of a chair lift or with the safety of a passenger, skier or snowboarder; or
8. Engage in skiing or snowboarding in an area within the snow recreation area which is posted, as provided in NRS 207.200, as closed.
455A.110. Duties of skiers and snowboarders.
A skier or snowboarder shall, to the extent that the matter is within his or her control:
1. Locate and ascertain the meaning of signs in the vicinity of the skier or snowboarder posted pursuant to NRS 455A.130 and 455A.140;
2. Heed warnings and other information posted by an operator;
3. Remain a safe distance from vehicles, signs and equipment for grooming snow or for transportation;
4. Avoid skiers or snowboarders in motion when entering a slope, run or trail, and when commencing to engage in skiing or snowboarding from a stationary position;
5. Maintain a proper lookout and control of his or her speed to avoid downhill objects, skiers and snowboarders to the best of his or her ability; and
6. Conduct himself or herself in such a manner as to avoid injury to persons and property in a snow recreation area.
455A.120. Prohibited acts.
A skier or snowboarder shall not:
1. Use a ski or snowboard unless it is attached to the skier or snowboarder by a strap or equipped with a device capable of stopping the movement of the ski or snowboard when not attached to the skier or snowboarder;
2. Cross the uphill path of a surface lift except at locations designated by an operator; or
3. Willfully stop where the skier or snowboarder obstructs a slope, run or trail, or where he or she is not safely visible to uphill skiers or snowboarders.
455A.130. Signs at chair lifts: Requirements; inspection.
1. An operator shall prominently post and maintain signs in simple and concise language:
(a) By each chair lift, with information for the protection and instruction of passengers; and
(b) At or near the points where passengers are loaded on a chair lift, directing persons who are not familiar with the operation of the chair lift to ask an authorized agent or employee of the operator for assistance and instruction.
2. An operator shall prominently post and maintain signs with the following inscriptions at all chair lifts in the locations indicated:
(a) “Remove pole straps from wrists” at an area for loading skiers;
(b) “Safety gate” where applicable;
(c) “Stay on tracks” where applicable;
(d) “Keep ski tips or snowboard up” ahead of any point where a ski or snowboard can regain contact with the ground or snowy surface after a passenger departs from an area for loading skiers or snowboarders;
(e) “Prepare to unload” and “check for loose clothing and equipment” not less than 50 feet from an area for unloading skiers or snowboarders; and
(f) “Unload here” at an area for unloading skiers or snowboarders.
3. An operator shall inspect a snow recreation area for the presence and visibility of the signs required to be posted by this section each day before opening the snow recreation area for business.
455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light.
1. An operator shall post and maintain a system of signs:
(a) At the entrances to an established slope, run or trail to indicate:
(1) Whether any portion of the slope, run or trail is closed; and
(2) The relative degree of difficulty of the slope, run or trail;
(b) To indicate the boundary of the snow recreation area, except in heavily wooded areas or other terrain that cannot be skied or snowboarded readily; and
(c) To warn of each area within the boundary of the snow recreation area where there is a danger of avalanche by posting signs stating “Warning: Avalanche Danger Area.”
2. An operator shall equip vehicles it uses on or in the vicinity of a slope, run or trail with a light visible to skiers or snowboarders when the vehicle is in motion.
455A.150. Illumination of signs at night.
A sign required to be posted pursuant to NRS 455A.130; and 455A.140 must be adequately illuminated at night, if the snow recreation area is open to the public at night, and be readable and recognizable under ordinary conditions of visibility.
455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers.
1. A skier or snowboarder who sustains a personal injury shall notify the operator or a member of the patrol of the injury as soon as reasonably possible after discovery of the injury.
2. An operator is not liable for the death or injury of a person or damages to property caused or sustained by a skier or snowboarder who knowingly enters an area which is not designated for skiing or snowboarding or which is outside the boundary of a snow recreation area.
3. An operator shall take reasonable steps to minimize dangers and conditions within the operator’s control.
455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty.
1. A skier or snowboarder shall not engage in skiing or snowboarding, or embark on a chair lift that is proceeding predominantly uphill, while intoxicated or under the influence of a controlled substance as defined in chapter 453 of NRS unless in accordance with a lawfully issued prescription.
2. A skier or snowboarder who is involved in a collision in which another person is injured shall provide his or her name and current address to the injured person, the operator or a member of the patrol:
(a) Before the skier or snowboarder leaves the vicinity of the collision; or
(b) As soon as reasonably possible after leaving the vicinity of the collision to secure aid for the injured person.
3. A person who violates a provision of this section is guilty of a misdemeanor.
455A.180. Revocation of license or privilege to engage in skiing or snowboarding.
An operator may revoke the license or privilege of a person to engage in skiing or snowboarding in a snow recreation area if the person violates any provision of NRS 455A.100, 455A.110, 455A.120 or 455A.170.
455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter.
The provisions of NRS 455A.010 to 455A.190, inclusive, do not prohibit a county, city or unincorporated town from enacting an ordinance, not in conflict with the provisions of NRS 455A.010 to 455A.190, inclusive, regulating skiers, snowboarders or operators.
Michigan Ski Safety Act
Posted: July 22, 2013 Filed under: Michigan, Ski Area, Skiing / Snow Boarding | Tags: Michigan, Michigan Ski Safety Act, Ski, ski area, Ski lift, Ski Resort, Skier, Skier Safety Act, Snowboarder Leave a commentMichigan Ski Safety Act
MICHIGAN COMPILED LAWS SERVICE
CHAPTER 408 LABOR
SKI AREA SAFETY ACT OF 1962
Go to the Michigan Code Archive Directory
MCLS prec § 408.321 (2012)
MCL § 408.321
Table of Contents
§ 408.321. Ski area safety act of 1962; short title. 2
§ 408.323. Ski area safety board; creation; composition; qualifications; ex officio members. 5
§ 408.324. Ski area safety board; appointment and terms of members; vacancies. 5
§ 408.326. Rules; proposed legislation establishing fee schedule. 6
§ 408.326a. Duties of ski area operator. 6
§ 408.327. Promulgation of rules. 8
§ 408.328. Commissioner of labor; administration of act. 8
§ 408.329. Ski lifts; permits requirement, inspection. 8
§ 408.330. Ski lifts; temporary permits. 9
§ 408.331. Ski lifts; permits, issuance, expiration. 9
§ 408.332. Ski lifts; erection, alteration, moving, plans and specifications; rope tows. 9
§ 408.333. Ski lifts; order to cease operation. 10
§ 408.334. Ski lifts; existing installations. 10
§ 408.335. Ski lifts; rules and regulations, modification for hardship, record. 10
§ 408.336. Ski lifts; fees. 10
§ 408.337. Chief inspector; inspection service. 11
§ 408.338. Revenue; disbursements. 11
§ 408.339. Notice of public hearing. 12
§ 408.340. Violations; penalties; rules. 12
§ 408.341. Skier conduct; prohibited conduct in ski area. 13
§ 408.342. Duties of skier in ski area; acceptance of dangers. 13
§ 408.343. Accidents causing injury; notice; identification; misdemeanor; penalty. 16
§ 408.344. Violation of act; liability. 17
Preceding § 408.321
An act to provide for the inspection, licensing, and regulation of ski areas and ski lifts; to provide for the safety of skiers, spectators, and the public using ski areas; to provide for certain presumptions relative to liability for an injury or damage sustained by skiers; to prescribe the duties of skiers and ski area operators; to create a ski area safety board; to provide for the disposition of revenues; to provide for liability for damages which result from a violation of this act; to provide civil fines for certain violations of this act; and to provide criminal penalties for certain violations of this act. (Amended by Pub Acts 1981, No. 86, imd eff July 2, 1981; 1995, No. 120, imd eff June 30, 1995.)
§ 408.321. Ski area safety act of 1962; short title.
Sec. 1. This act shall be known and may be cited as the “ski area safety act of 1962”.
§ 408.322. Definitions.
Sec. 2. As used in this act:
(a) “Board” means the ski area safety board.
(b) “Commissioner” means the director of commerce or an authorized representative of the director.
(c) “Department” means the state department of commerce.
(d) “Operator” means a person who owns or controls, or who has operational responsibility for, a ski area or ski lift. An operator includes this state or a political subdivision of this state.
(e) “Passenger” means a person, skier or nonskier, who boards, disembarks from, or is transported by a ski lift, regardless of whether the ski lift is being used during the skiing season or nonskiing season, and includes a person waiting for or moving away from the loading or unloading point of a ski lift.
(f) “Ski area” means an area used for skiing and served by 1 or more ski lifts.
(g) “Skier” means a person wearing skis or utilizing a device that attaches to at least 1 foot or the lower torso for the purpose of sliding on a slope. The device slides on the snow or other surface of a slope and is capable of being maneuvered and controlled by the person using the device. Skier includes a person not wearing skis or a skiing device while the person is in a ski area for the purpose of skiing.
(h) “Ski lift” means a device for transporting persons uphill on skis, or in cars on tracks, or suspended in the air by the use of cables, chains, belts, or ropes, and usually supported by trestles or towers with 1 or more spans. Ski lift includes a rope tow.
§ 408.323. Ski area safety board; creation; composition; qualifications; ex officio members.
Sec. 3. A ski area safety board consisting of 7 members is created within the office of the commissioner. The board consists of 3 ski area managers, 1 from the Upper Peninsula and 2 from the Lower Peninsula; 1 engineer with skiing experience; 1 member of the central United States ski association, a nonprofit corporation; 1 person with skiing experience from the Upper Peninsula representing the general public; and 1 with skiing experience from the Lower Peninsula representing the general public. The commissioner and an officer of the Michigan tourist council are ex officio members of the board without vote.
§ 408.324. Ski area safety board; appointment and terms of members; vacancies.
Sec. 4. Members of the board shall be appointed by the governor with the advice and consent of the senate for terms of 4 years and until their successors are appointed and qualified. Vacancies in the board shall be filled for the unexpired term.
§ 408.325. Ski area safety board; conducting business at public meeting; notice; election of chairperson and other officers; quorum; meetings; compensation and expenses.
Sec. 5. (1) The business which the board may perform shall be conducted at a public meeting of the board held in compliance with Act No. 267 of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan Compiled Laws. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976. The board shall elect a chairperson and other officers it considers necessary to perform its duties between meetings. A majority of the 7 voting members shall constitute a quorum. The board shall meet not less than once yearly on the call of the chairperson or by written request of not less than 3 members.
(2) The per diem compensation of the members of the board, other than the commissioner, and the schedule for reimbursement of expenses shall be established annually by the legislature.
§ 408.326. Rules; proposed legislation establishing fee schedule.
Sec. 6. (1) The board shall promulgate rules for the safe construction, installation, repair, use, operation, maintenance, and inspection of all ski areas and ski lifts as the board finds necessary for protection of the general public while using ski areas and ski lifts. The rules shall be reasonable and based upon generally accepted engineering standards, formulas, and practices.
(2) The board, with the advice of the commissioner, shall propose legislation to establish the fee schedule for permits, inspections, and plan review activities. The fees shall reflect the actual costs and expenses of the department for issuing permits and conducting inspections and plan reviews.
§ 408.326a. Duties of ski area operator.
Sec. 6a. Each ski area operator shall, with respect to operation of a ski area, do all of the following:
(a) Equip each snow-grooming vehicle and any other authorized vehicle, except a snowmobile, with a flashing or rotating yellow light conspicuously located on the vehicle, and operate the flashing or rotating yellow light while the vehicle is moving on, or in the vicinity of, a ski run. A snowmobile operated in a ski area shall be operated with at least 1 operating white light located on the front of the snowmobile.
(b) Mark with a visible sign or other warning device the location of any hydrant or similar fixture or equipment used in snow-making operations located on a ski run, as prescribed by rules promulgated under section 20(3).
(c) Mark the top of or entrance to each ski run, slope, and trail to be used by skiers for the purpose of skiing, with an appropriate symbol indicating the relative degree of difficulty of the run, slope, or trail, using a symbols code prescribed by rules promulgated under section 20(3).
(d) Mark the top of or entrance to each ski run, slope, and trail which is closed to skiing, with an appropriate symbol indicating that the run, slope, or trail is closed, as prescribed by rules promulgated under section 20(3).
(e) Maintain 1 or more trail boards at prominent locations in each ski area displaying that area’s network of ski runs, slopes, and trails and the relative degree of difficulty of each ski run, slope, and trail, using the symbols code required under subdivision (c) and containing a key to that code, and indicating which runs, slopes, and trails are open or closed to skiing.
(f) Place or cause to be placed, if snow-grooming or snow-making operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.
(g) Post the duties of skiers and passengers as prescribed in sections 21 and 22 and the duties, obligations, and liabilities of operators as prescribed in this section in and around the ski area in conspicuous places open to the public.
(h) Maintain the stability and legibility of all required signs, symbols, and posted notices.
§ 408.327. Promulgation of rules.
Sec. 7. The rules shall be promulgated pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws.
§ 408.328. Commissioner of labor; administration of act.
Sec. 8. The commissioner, subject to the limitations herein contained and the rules and regulations of the board, shall administer and enforce the provisions of this act.
§ 408.329. Ski lifts; permits requirement, inspection.
Sec. 9. No person shall operate a ski lift without a permit issued by the commissioner. On or before October 1 of each year an operator shall apply for a permit to the commissioner on a form furnished by the commissioner and containing such information as the board may require. All ski lifts shall be inspected before they are originally put into operation for the public’s use and thereafter at least once every 12 months, unless permitted to operate on a temporary permit.
§ 408.330. Ski lifts; temporary permits.
Sec. 10. The commissioner may issue a temporary permit for 30 calendar days to an operator, who has previously been operating in this state on a regular or annual basis, to continue operation. An inspection of his ski lifts shall be made within 30 days from the issuance of the permit. A ski lift inspected and covered by a permit in the preceding year may operate on a temporary basis until further inspected.
§ 408.331. Ski lifts; permits, issuance, expiration.
Sec. 11. If upon inspection a ski lift is found to comply with the rules and regulations of the board, the commissioner shall issue a permit to operate. A permit shall expire on September 30 of the following year.
§ 408.332. Ski lifts; erection, alteration, moving, plans and specifications; rope tows.
Sec. 12. Before a new ski lift is erected, or before a presently existing ski lift is moved to a different location, or whenever any additions or alterations are made which change the structure, mechanism, classification or capacity of any ski lift, the operator shall file with the department detailed, duplicate plans and specifications of such work. The plans and specifications shall be prepared by a qualified tramway firm or by an engineer, licensed in this state as a professional engineer, in accordance with Act No. 240 of the Public Acts of 1937, as amended, being sections 338.551 to 338.576 of the Compiled Laws of 1948. Upon approval of plans and specifications, the department shall issue a permit for such work. All rope tows shall be excluded from this section.
§ 408.333. Ski lifts; order to cease operation.
Sec. 13. The commissioner or board may order, in writing, a temporary cessation of operation of a ski lift if it has been determined after inspection to be hazardous or unsafe. Operation shall not resume until such conditions are corrected to the satisfaction of the commissioner or board.
§ 408.334. Ski lifts; existing installations.
Sec. 14. This act shall not be construed to prevent the use of any existing installation, upon inspection found to be in a safe condition and to conform with the rules and regulations of the board.
§ 408.335. Ski lifts; rules and regulations, modification for hardship, record.
Sec. 15. If there are practical difficulties or unnecessary hardships for an operator to comply with the rules and regulations under this act, the commissioner, with the approval of the board, may modify the application of such rules or regulations to such a situation, if the spirit of the provisions shall be observed and the public safety is secured. Any operator may make a written request to the board stating his grounds and applying for such modification. Any authorization by the commissioner and the board shall be in writing and shall describe the conditions under which the modification is permitted. A record of all modifications shall be kept in the department and open to the public.
§ 408.336. Ski lifts; fees.
Sec. 16. (a) An application for a permit shall be accompanied by fees of:
$25.00 for an annual permit; or
$2.00 for each rope tow,
$5.00 for each T bar, J bar or platter pull,
$15.00 for each chair lift or skimobile, and
$30.00 for each aerial tramway,
if greater than the $25.00 annual permit fee.
(b) Inspection fees shall be as follows:
$8.00 for each rope tow,
$20.00 for each T bar, J bar or platter pull,
$60.00 for each chair lift or skimobile,
$120.00 for each aerial tramway, and
$50.00 for reinspections or special inspections at an operator’s request.
Any operator may employ any person, partnership or corporation, approved by the commissioner and board, to make the inspections. Inspections made by any person, partnership, or corporation, that may be employed by an operator, shall be on forms furnished or approved by the department. Inspection fees shall be waived when the annual permit application is accompanied by such an inspection report.
(c) Fees for review and approval of plans prior to construction shall be $200.00 for a chair lift, T bar, J bar, platter pull or tramway.
Fees for review and approval of plans for modification and alteration of an existing lift shall be $50.00.
(d) Fees shall be paid to the department, which shall give receipts therefor.
§ 408.337. Chief inspector; inspection service.
Sec. 17. The department, with the advice and consent of the board, shall employ or retain a person qualified in engineering and training who shall be designated chief inspector. The chief inspector and such additional inspectors and other employees as may be necessary to properly administer this act may be hired on a temporary basis or borrowed from other state departments, or the department may contract with persons, partnerships or corporations for such inspection services on an independent basis.
§ 408.338. Revenue; disbursements.
Sec. 18. All fees for permits or inspections, or any other income received under this act, shall be paid into the general fund. All salaries and other moneys expended under this act shall be paid by the state treasurer from a fund appropriated by the legislature.
§ 408.339. Notice of public hearing.
Sec. 19. (1) In addition to the notice prescribed in section 5(1) notice of a public hearing held under this act shall be published not less than once and not less than 10 days before the hearing, in newspapers of general circulation prescribed by the commissioner.
§ 408.340. Violations; penalties; rules.
Sec. 20. (1) Except for sections 21 to 24, and except as provided in subsection (2), a person who violates this act, or a rule or order promulgated or issued pursuant to this act, or a person who interferes with, impedes, or obstructs the commissioner, an authorized representative of the commissioner, or a board member in the performance of duties prescribed by this act, is guilty of a misdemeanor. Each day a violation or other act continues shall be considered a separate offense.
(2) A member of the board who intentionally violates section 5(1) shall be subject to the penalties prescribed in Act No. 267 of the Public Acts of 1976, as amended.
(3) Not more than 270 days after the effective date of this subsection, the board shall, pursuant to section 7, promulgate rules consistent with this act to implement this act, except for subsection (2) and sections 21, 22, 23, and 24, not to exceed $50.00 for each violation.
§ 408.341. Skier conduct; prohibited conduct in ski area.
Sec. 21. (1) A skier shall conduct himself or herself within the limits of his or her individual ability and shall not act or ski in a manner that may contribute to his or her injury or to the injury of any other person. A skier shall be the sole judge of his or her ability to negotiate a track, trail, or slope.
(2) While in a ski area, a skier or passenger shall not do any of the following:
(a) Board a ski lift which has been designated as closed.
(b) Wilfully board or embark upon, or disembark from, a ski lift, except at an area designated for those purposes.
(c) Intentionally drop, throw, or expel an object from a ski lift while riding on the lift.
(d) Do any act which interferes with the running or operation of a ski lift, such as, but not limited to: swinging or bouncing on an aerial lift, attempting to contact supporting towers, machinery, guides, or guards while riding on a ski lift; or skiing out of the designated ski track on a surface lift or tow.
(e) Use a ski lift, unless the skier or passenger has the ability to use the lift safely without instruction on use of the lift by a ski area owner, manager, operator, or employee, or unless the skier or passenger requests and receives instruction before entering the boarding area of the ski lift.
(f) Use a ski lift or ski without properly engaging and using ski restraining devices, brakes, or restraining straps.
§ 408.342. Duties of skier in ski area; acceptance of dangers.
Sec. 22. (1) While in a ski area, each skier shall do all of the following:
(a) Maintain reasonable control of his or her speed and course at all times.
(b) Stay clear of snow-grooming vehicles and equipment in the ski area.
(c) Heed all posted signs and warnings.
(d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e).
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
§ 408.343. Accidents causing injury; notice; identification; misdemeanor; penalty.
Sec. 23. (1) A skier involved in an accident causing an injury to another person shall to the extent that he or she is reasonably able to do so immediately notify the ski patrol or the operator, or law enforcement or emergency personnel, and shall clearly identify himself or herself. A skier who wilfully fails to give identification after involvement in a skiing accident with another person, or a skier who is reasonably able to do so who fails to notify the proper authorities or to obtain assistance when the skier knows that another person involved in the accident is in need of medical or other assistance, is guilty of a misdemeanor, punishable by imprisonment for not more than 30 days, or a fine of not more than $100.00, or both.
(2) A skier involved in an accident causing an injury to himself or herself, but not to another person, shall immediately notify the ski patrol or the operator, or law enforcement or emergency personnel, if the accident created a known hazardous condition in the area where the accident occurred.
§ 408.344. Violation of act; liability.
Sec. 24. A skier or passenger who violates this act, or an operator who violates this act shall be liable for that portion of the loss or damage resulting from that violation.
Idaho Ski Safety Act
Posted: July 22, 2013 Filed under: Idaho, Skiing / Snow Boarding | Tags: Alpine skiing, Idaho, Idaho Ski Safety Act, Outdoors, Recreation, Ski, ski area, Ski Resort, Ski Safety Act, Skier, Snowboarder Leave a commentIdaho 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.
Georgia Ski Safety Act
Posted: July 22, 2013 Filed under: Georgia, Ski Area, Skiing / Snow Boarding | Tags: Alpine skiing, Georgia, Georgia Ski Safety Act, Recreation, Ski, Ski Resort, Skier, Skier Safety Act, Snowboarder Leave a commentGeorgia Ski Safety Act
OFFICIAL CODE OF GEORGIA ANNOTATED
Copyright 2012 by The State of Georgia
TITLE 43. PROFESSIONS AND BUSINESSES
CHAPTER 43A. SNOW SKIING SAFETY
GO TO GEORGIA STATUTES ARCHIVE DIRECTORY
O.C.G.A. § 43-43A-1 (2012)
§ 43-43A-1. Definitions
As used in this chapter, the term:
(1) “Base area lift” means a passenger tramway to gain access to some other part of the ski area.
(2) “Competitor” means a skier engaging in competition or preparing for competition on a slope or trail designated by the ski area or used by the skier for the purpose of competition or training for competition.
(3) “Conditions of ordinary visibility” means all periods of daylight, and, when visibility is not restricted by weather or other atmospheric conditions, nighttime.
(4) “Inherent dangers and risks of skiing” means categories of danger or risks of skiing, or conditions of the sport of skiing that cause or can cause any injury, death, or property damage, including:
(A) Changing weather conditions;
(B) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;
(C) Surface or subsurface conditions other than those specified in subparagraph (B) of this paragraph, including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;
(D) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;
(E) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and
(F) Collisions with other skiers unless such collisions are caused by the failure on the part of other skiers to conduct themselves in accordance with the provisions of this chapter.
(5) “Passenger” means a person who is lawfully being transported by a passenger tramway.
(6) “Passenger tramway” means any mechanical device used to transport passengers uphill, but such term does not include over-snow vehicles.
(7) “Ski area” means all snow ski slopes or trails and other places under the control of a ski area operator at a defined business location within this state.
(8) “Ski area operator” means an individual, partnership, corporation, or other commercial entity who owns, manages, or otherwise directs or has operational responsibility for any ski area.
(9) “Ski slopes or trails” means those areas open to the skiing public and designated by the ski area operator to be used by a skier. The designation may be generally set forth on trail maps and further designated by signage posted to indicate to the skiing public the intent that the areas be used by the skier for the purpose of skiing. Nothing in this paragraph implies that ski slopes or trails may not be restricted for use at the discretion of the ski area operator.
(10) “Skier” means any person who uses any part of a ski area for the purpose of skiing, snowboard skiing, or sliding or moving on any device other than a motorized device or any person except a passenger who uses any of the facilities of the ski area, including the ski slopes and trails.
(11) “Surface lift” means any passenger tramway that allows the skier’s sliding equipment to stay in contact with the skier and the snow during all of the uphill transportation.
§ 43-43A-2. Use of passenger tramway; passenger rules
(a) No passenger shall use a passenger tramway if the passenger does not have sufficient knowledge, ability, or physical dexterity to negotiate or use the facility safely unless and until the passenger has asked for and received information sufficient to enable the passenger to use the equipment safely. A passenger is required to follow any written, verbal, or other instructions that are given by ski area personnel regarding the use of the passenger tramway.
(b) No passenger shall:
(1) Attempt to enter, use, exit, or leave a passenger tramway except at a location designated by ski area signage for that purpose, except that, in the event of a stoppage of the passenger tramway, a passenger may exit under the supervision and direction of the operator or its representatives, or, in the event of an emergency, a passenger may exit in order to prevent an injury to the passenger or others;
(2) Throw, drop, or release any object from a passenger tramway except as directed by the operator or its representatives;
(3) Act in any manner that may interfere with the proper or safe operation of the passenger tramway or cause any risk, harm, or injury to any person;
(4) Place in an uphill track of any surface lift any object that may cause damage to property or injury to any person;
(5) Use or attempt to use any passenger tramway marked as closed; or
(6) Disobey any instructions posted in accordance with this chapter or any verbal or other instructions of the ski area operator or its lawful designee regarding the use of passenger tramways.
§ 43-43A-3. Sign system; inspection; explanation of signs and symbols; warning signs; degree of difficulty signs
(a) Each ski area operator shall maintain a sign system with information for the instruction of passengers and skiers. Signs must be in English and visible in conditions of ordinary visibility and, where applicable, lighted for nighttime passengers. Without limitation, the signs shall be posted:
(1) At or near the loading point of each passenger tramway, regardless of the type, advising all persons that if they are not familiar with the operation of the device, they must ask the operator of the device for assistance and instructions and that they must understand such instructions before they attempt to use the passenger tramway; and
(2) At or near the boarding area of each lift, setting forth the warning regarding inherent dangers and risks and duties as provided in this chapter.
(b) The ski area operator, before opening a passenger tramway to the public each day, shall inspect the passenger tramway for the presence and visibility of all required signs.
(c) The ski area operator shall post a sign visible to skiers who are proceeding to the uphill loading point of each base area lift which shall depict and explain the following signs and symbols that a skier may encounter at the ski area:
(1) A green circle and the word “easier” designating the ski area’s least difficult trails and slopes;
(2) A blue square and the words “more difficult” designating the ski area’s trails and slopes that have a degree of difficulty that lies between the least difficult and most difficult trails and slopes;
(3) A black diamond and the words “most difficult” designating the ski area’s most difficult trails and slopes;
(4) Two black diamonds and the words “most difficult” designating a slope or trail which meets the description of “most difficult” but which is particularly challenging; and
(5) Crossed poles or other images clearly indicating that a trail or slope is closed and may not be used by skiers.
(d) If applicable, a warning sign shall be placed at or near the loading point of a passenger tramway indicating that it provides access to only “most difficult” or “more difficult” slopes or trails.
(e) The ski area operator shall place a sign at or near the beginning of each trail or slope indicating the relative degree of difficulty of that particular trail or slope.
§ 43-43A-4. Warning notice
(a) The ski area operator shall post and maintain signs that contain the following warning notice:
“WARNING: Under Georgia law, every skier accepts the risk of any injury or death and damage to property resulting from any of the inherent dangers or risks of skiing. The inherent dangers or risks of skiing, or conditions of the sport of skiing that cause or can cause injury, death, or property damage, include:
(1) Changing weather conditions;
(2) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions;
(3) Surface or subsurface conditions other than those specified in paragraph (2), including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions;
(4) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components;
(5) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and
(6) Collisions with other skiers.”
(b) A warning sign as described in subsection (a) of this Code section shall be placed:
(1) At the ski area in the location where lift tickets or ski school lessons are sold;
(2) In the vicinity of the uphill loading point of each base area lift; and
(3) At such other places as the ski area operator may select.
(c) Each sign required by subsection (a) of this Code section shall be no smaller than 3 feet by 3 feet and shall be white or yellow with black and red letters as specified in this subsection. The word “WARNING” shall appear on the sign in red letters. The warning notice specified in subsection (a) of this Code section shall appear on the sign in black letters with each letter being a minimum of one inch in height.
(d) Every passenger tramway ticket sold may contain the warning notice specified in subsection (a) of this Code section.
§ 43-43A-6. Revocation of skiing privileges
Each ski area operator, upon finding a person skiing in violation of any posted regulations governing skiing conduct, may revoke that person’s skiing privileges. This Code section shall not in any way be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or other skiers’ careless or reckless behavior, including any skier’s violation of any duties set forth in this chapter.
§ 43-43A-7. Duties and responsibilities of each skier; assumption of risk
Any other provision of law to the contrary notwithstanding:
(1) Each individual skier has the responsibility for knowing the range of his or her own ability to negotiate any ski slope or trail or any portion thereof and must ski within the limits of his or her ability. Each skier expressly accepts and assumes the risk of any injury or death or damage to property resulting from any of the inherent dangers and risks of skiing, as set forth in this chapter; provided, however, that injuries sustained in a collision with another skier are not an inherent risk of the sport for purposes of this Code section;
(2) Each skier has the duty to maintain control of his or her speed and course at all times and to maintain a proper lookout so as to be able to avoid other skiers and objects, natural or manmade. The skier shall have the primary duty to avoid colliding with any persons or objects below him or her on the trail;
(3) No skier shall ski on a ski slope or trail that has been posted as closed in accordance with the provisions of this chapter;
(4) Each skier shall stay clear of all snow grooming or snow making equipment, vehicles, lift towers, signs, and any other equipment at the ski area;
(5) Each skier shall obey all posted information, warnings, and requirements and shall refrain from acting in any manner that might cause or contribute to the injury of the skier or any other person. Each skier shall be charged with having seen and understood all information posted as required or permitted in this chapter. Each skier shall locate and ascertain the meaning of all signs posted in accordance with this chapter;
(6) Each sliding device used by a skier shall be equipped with a strap or other device designed to help reduce the risk of any runaway equipment should it become unattached from the skier;
(7) No skier shall cross the uphill track of any surface lift device except at locations designated by the operator, nor shall any person place any object in the uphill track of such a device;
(8) Before beginning to ski from a stationary position, or before entering a ski slope or trail, the skier shall have the duty of yielding to moving skiers already using the slope or trail;
(9) No skier shall stop where he or she obstructs a trail or is not visible from higher on the slope or trail; and
(10) No skier shall board or use or attempt to board or use any passenger tramway of any type or use any ski slope or trail while that skier’s ability to do so is impaired by alcohol, drugs, or any controlled substance.
Colorado Ski Safety Act
Posted: July 22, 2013 Filed under: Colorado | Tags: Alpine skiing, Colorado, Outdoors, Recreation, Ski, ski area, Ski Resort, Ski Safety Act, Skier, Snowboarder, Sports Leave a commentARTICLE 44
SKI SAFETY AND LIABILITY
33-44-102. Legislative declaration. 1
33-44-104. Negligence – civil actions. 3
33-44-105. Duties of passengers. 3
33-44-106. Duties of operators – signs. 4
33-44-107. Duties of ski area operators – signs and notices required for skiers’ information. 5
33-44-108. Ski area operators – additional duties. 7
33-44-109. Duties of skiers – penalties. 8
33-44-110. Competition and freestyle terrain. 9
33-44-111. Statute of limitation. 9
33-44-112. Limitation on actions for injury resulting from inherent dangers and risks of skiing. 10
33-44-113. Limitation of liability. 10
33-44-114. Inconsistent law or statute. 10
33-44-101. Short title.
This article shall be known and may be cited as the “Ski Safety Act of 1979”.
33-44-102. Legislative declaration.
The general assembly hereby finds and declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is to supplement the passenger tramway safety provisions of part 7 of article 5 of title 25, C.R.S.; to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.
33-44-103. Definitions.
As used in this article, unless the context otherwise requires:
(1) “Base area lift” means any passenger tramway which skiers ordinarily use without first using some other passenger tramway.
(2) “Competitor” means a skier actually engaged in competition, a special event, or training or practicing for competition or a special event on any portion of the area made available by the ski area operator.
(3) “Conditions of ordinary visibility” means daylight and, where applicable, nighttime in nonprecipitating weather.
(3.1) “Extreme terrain” means any place within the ski area boundary that contains cliffs with a minimum twenty-foot rise over a fifteen-foot run, and slopes with a minimum fifty-degree average pitch over a one-hundred-foot run.
(3.3) “Freestyle terrain” includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes, and all other constructed and natural features, half-pipes, quarter-pipes, and freestyle-bump terrain.
(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
(4) “Passenger” means any person who is lawfully using any passenger tramway.
(5) “Passenger tramway” means a device as defined in section 25-5-702 (4), C.R.S.
(6) “Ski area” means all ski slopes or trails and all other places within the ski area boundary, marked in accordance with section 33-44-107 (6), under the control of a ski area operator and administered as a single enterprise within this state.
(7) “Ski area operator” means an “area operator” as defined in section 25-5-702 (1), C.R.S., and any person, partnership, corporation, or other commercial entity having operational responsibility for any ski areas, including an agency of this state or a political subdivision thereof.
(8) “Skier” means any person using a ski area for the purpose of skiing, which includes, without limitation, sliding downhill or jumping on snow or ice on skis, a toboggan, a sled, a tube, a snowbike, a snowboard, or any other device; or for the purpose of using any of the facilities of the ski area, including but not limited to ski slopes and trails.
(9) “Ski slopes or trails” means all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and those areas designated by the ski area operator to be used by skiers for any of the purposes enumerated in subsection (8) of this section. Such designation shall be set forth on trail maps, if provided, and designated by signs indicating to the skiing public the intent that such areas be used by skiers for the purpose of skiing. Nothing in this subsection (9) or in subsection (8) of this section, however, shall imply that ski slopes or trails may not be restricted for use by persons using skis only or for use by persons using any other device described in subsection (8) of this section.
33-44-104. Negligence – civil actions.
(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.
(2) A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704 (1) (a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.
(3) All rules adopted or amended by the passenger tramway safety board on or after July 1, 1979, shall be subject to sections 24-4-103 (8) (c) and (8) (d) and 24-34-104 (9) (b) (II), C.R.S.
33-44-105. Duties of passengers.
(1) No passenger shall board a passenger tramway if he does not have sufficient physical dexterity, ability, and knowledge to negotiate or use such facility safely or until such passenger has asked for and received information sufficient to enable him to use the equipment safely. A passenger is required to follow any written or verbal instructions that are given to him regarding the use of the passenger tramway.
(2) No passenger shall:
(a) Embark upon or disembark from a passenger tramway except at a designated area except in the event of a stoppage of the passenger tramway (and then only under the supervision of the operator) or unless reasonably necessary in the event of an emergency to prevent injury to the passenger or others;
(b) Throw or expel any object from any passenger tramway while riding on such device, except as permitted by the operator;
(c) Act, while riding on a passenger tramway, in any manner that may interfere with proper or safe operation of such passenger tramway;
(d) Engage in any type of conduct that may contribute to or cause injury to any person;
(e) Place in an uphill track of a J-bar, T-bar, platter pull, rope tow, or any other surface lift any object that could cause another skier to fall;
(f) Embark upon a passenger tramway marked as closed;
(g) Disobey any instructions posted in accordance with this article or any verbal instructions by the ski area operator regarding the proper or safe use of a passenger tramway unless such verbal instructions are contrary to this article or the rules promulgated under it, or contrary to posted instructions.
33-44-106. Duties of operators – signs.
(1) Each ski area operator shall maintain a sign system with concise, simple, and pertinent information for the protection and instruction of passengers. Signs shall be prominently placed on each passenger tramway readable in conditions of ordinary visibility and, where applicable, adequately lighted for nighttime passengers. Signs shall be posted as follows:
(a) At or near the loading point of each passenger tramway, regardless of the type, advising that any person not familiar with the operation of the device shall ask the operator of the device for assistance and instruction;
(b) At the interior of each two-car and multicar passenger tramway, showing:
(I) The maximum capacity in pounds of the car and the maximum number of passengers allowed;
(II) Instructions for procedures in emergencies;
(c) In a conspicuous place at each loading area of two-car and multicar passenger tramways, stating the maximum capacity in pounds of the car and the maximum number of passengers allowed;
(d) At all chair lifts, stating the following:
(I) “Prepare to Unload”, which shall be located not less than fifty feet ahead of the unloading area;
(II) “Keep Ski Tips Up”, which shall be located ahead of any point where the skis may come in contact with a platform or the snow surface;
(III) “Unload Here”, which shall be located at the point designated for unloading;
(IV) “Safety Gate”, which shall be located where applicable;
(V) “Remove Pole Straps from Wrists”, which shall be located prominently at each loading area;
(VI) “Check for Loose Clothing and Equipment”, which shall be located before the “Prepare to Unload” sign;
(e) At all J-bars, T-bars, platter pulls, rope tows, and any other surface lift, stating the following:
(I) “Remove Pole Straps from Wrists”, which shall be placed at or near the loading area;
(II) “Stay in Tracks”, “Unload Here”, and “Safety Gate”, which shall be located where applicable;
(III) “Prepare to Unload”, which shall be located not less than fifty feet ahead of each unloading area;
(f) Near the boarding area of all J-bars, T-bars, platter pulls, rope tows, and any other surface lift, advising passengers to check to be certain that clothing, scarves, and hair will not become entangled with the lift;
(g) At or near the boarding area of all lifts, regarding the requirements of section 33-44-109 (6).
(2) Other signs not specified by subsection (1) of this section may be posted at the discretion of the ski area operator.
(3) The ski area operator, before opening the passenger tramway to the public each day, shall inspect such passenger tramway for the presence and visibility of the signs required by subsection (1) of this section.
(4) The extent of the responsibility of the ski area operator under this section shall be to post and maintain such signs as are required by subsection (1) of this section in such condition that they may be viewed during conditions of ordinary visibility. Evidence that signs required by subsection (1) of this section were present, visible, and readable where required at the beginning of the passenger tramway operation on any given day raises a presumption that all passengers using said devices have seen and understood said signs.
33-44-107. Duties of ski area operators – signs and notices required for skiers’ information.
(1) Each ski area operator shall maintain a sign and marking system as set forth in this section in addition to that required by section 33-44-106. All signs required by this section shall be maintained so as to be readable and recognizable under conditions of ordinary visibility.
(2) A sign shall be placed in such a position as to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift depicting and explaining signs and symbols which the skier may encounter at the ski area as follows:
(a) The ski area’s least difficult trails and slopes, designated by a green circle and the word “easiest”;
(b) The ski area’s most difficult trails and slopes, designated by a black diamond and the words “most difficult”;
(c) The ski area’s trails and slopes which have a degree of difficulty that falls between the green circle and the black diamond designation, designated by a blue square and the words “more difficult”;
(d) The ski area’s extreme terrain shall be signed at the commonly used access designated with two black diamonds containing the letters “E” in one and “X” in the other in white and the words “extreme terrain”. The ski area’s specified freestyle terrain areas shall be designated with an orange oval.
(e) Closed trails or slopes, designated by an octagonal-shaped sign with a red border around a white interior containing a black figure in the shape of a skier with a black band running diagonally across the sign from the upper right-hand side to the lower left-hand side and with the word “Closed” printed beneath the emblem.
(3) If applicable, a sign shall be placed at or near the loading point of each passenger tramway, as follows:
“WARNING: This lift services (most difficult) or (most difficult and more difficult) or (more difficult) slopes only.”
(4) If a particular trail or slope or portion of a trail or slope is closed to the public by a ski area operator, such operator shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved. Alternatively, such a trail or slope or portion thereof may be closed with ropes or fences.
(5) The ski area operator shall place a sign at or near the beginning of each trail or slope, which sign shall contain the appropriate symbol of the relative degree of difficulty of that particular trail or slope as set forth by subsection (2) of this section. This requirement shall not apply to a slope or trail designated “easiest” which to a skier is substantially visible in its entirety under conditions of ordinary visibility prior to his beginning to ski the same.
(6) The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility. Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section. This requirement shall not apply in heavily wooded areas or other nonskiable terrain.
(7) The ski area operator shall mark hydrants, water pipes, and all other man-made structures on slopes and trails which are not readily visible to skiers under conditions of ordinary visibility from a distance of at least one hundred feet and shall adequately and appropriately cover such obstructions with a shock-absorbent material that will lessen injuries. Any type of marker shall be sufficient, including but not limited to wooden poles, flags, or signs, if the marker is visible from a distance of one hundred feet and if the marker itself does not constitute a serious hazard to skiers. Variations in steepness or terrain, whether natural or as a result of slope design or snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications, are not man-made structures, as that term is used in this article.
(8) (a) Each ski area operator shall post and maintain signs which contain the warning notice specified in paragraph (c) of this subsection (8). Such signs shall be placed in a clearly visible location at the ski area where the lift tickets and ski school lessons are sold and in such a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift. Each sign shall be no smaller than three feet by three feet. Each sign shall be white with black and red letters as specified in this paragraph (a). The words “WARNING” shall appear on the sign in red letters. The warning notice specified in paragraph (c) of this subsection (8) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.
(b) Every ski lift ticket sold or made available for sale to skiers by any ski area operator shall contain in clearly readable print the warning notice specified in paragraph (c) of this subsection (8).
(c) The signs described in paragraph (a) of this subsection (8) and the lift tickets described in paragraph (b) of this subsection (8) shall contain the following warning notice:
WARNING
Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.
33-44-108. Ski area operators – additional duties.
(1) Any motorized snow-grooming vehicle shall be equipped with a light visible at any time the vehicle is moving on or in the vicinity of a ski slope or trail.
(2) Whenever maintenance equipment is being employed to maintain or groom any ski slope or trail while such ski slope or trail is open to the public, the ski area operator shall place or cause to be placed a conspicuous notice to that effect at or near the top of that ski slope or trail. This requirement shall not apply to maintenance equipment transiting to or from a grooming project.
(3) All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following: One lighted headlamp, one lighted red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the bottom of the tracks.
(4) The ski area operator shall have no duty arising out of its status as a ski area operator to any skier skiing beyond the area boundaries marked as required by section 33-44-107 (6).
(5) The ski area operator, upon finding a person skiing in a careless and reckless manner, may revoke that person’s skiing privileges. This subsection (5) shall not be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or from another skier’s carelessness or recklessness.
33-44-109. Duties of skiers – penalties.
(1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability. Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.
(2) Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him.
(3) No skier shall ski on a ski slope or trail that has been posted as “Closed” pursuant to section 33-44-107 (2) (e) and (4).
(4) Each skier shall stay clear of snow-grooming equipment, all vehicles, lift towers, signs, and any other equipment on the ski slopes and trails.
(5) Each skier has the duty to heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others. Each skier shall be presumed to have seen and understood all information posted in accordance with this article near base area lifts, on the passenger tramways, and on such ski slopes or trails as he is skiing. Under conditions of decreased visibility, the duty is on the skier to locate and ascertain the meaning of all signs posted in accordance with sections 33-44-106 and 33-44-107.
(6) Each ski or snowboard used by a skier while skiing shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard become unattached from the skier. This requirement shall not apply to cross country skis.
(7) No skier shall cross the uphill track of a J-bar, T-bar, platter pull, or rope tow except at locations designated by the operator; nor shall a skier place any object in such an uphill track.
(8) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, the skier shall have the duty of avoiding moving skiers already on the ski slope or trail.
(9) No person shall move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug or while such person is under the influence of alcohol or any controlled substance, as defined in section 12-22-303 (7), C.R.S., or other drug.
(10) No skier involved in a collision with another skier or person in which an injury results shall leave the vicinity of the collision before giving his or her name and current address to an employee of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision; in which event the person so leaving the scene of the collision shall give his or her name and current address as required by this subsection (10) after securing such aid.
(11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6).
(12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.
33-44-110. Competition and freestyle terrain.
(1) The ski area operator shall, prior to use of any portion of the area made available by the ski area operator, allow each competitor an opportunity to reasonably visually inspect the course, venue, or area.
(2) The competitor shall be held to assume the risk of all course, venue, or area conditions, including, but not limited to, weather and snow conditions; obstacles; course or feature location, construction, or layout; freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used. No liability shall attach to a ski area operator for injury or death to any competitor caused by course, venue, or area conditions that a visual inspection should have revealed or by collisions with other competitors.
33-44-111. Statute of limitation.
All actions against any ski area operator or its employees brought to recover damages for injury to person or property caused by the maintenance, supervision, or operation of a passenger tramway or a ski area shall be brought within two years after the claim for relief arises and not thereafter.
33-44-112. Limitation on actions for injury resulting from inherent dangers and risks of skiing.
Notwithstanding any judicial decision or any other law or statute to the contrary, including but not limited to sections 13-21-111 and 13-21-111.7, C.R.S., no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.
33-44-113. Limitation of liability.
The total amount of damages which may be recovered from a ski area operator by a skier who uses a ski area for the purpose of skiing or for the purpose of sliding downhill on snow or ice on skis, a toboggan, a sled, a tube, a ski-bob, a snowboard, or any other device and who is injured, excluding those associated with an injury occurring to a passenger while riding on a passenger tramway, shall not exceed one million dollars, present value, including any derivative claim by any other claimant, which shall not exceed two hundred fifty thousand dollars, present value, and including any claim attributable to noneconomic loss or injury, as defined in sections 13-21-102.5 (2), C.R.S., whether past damages, future damages, or a combination of both, which shall not exceed two hundred fifty thousand dollars. If, upon good cause shown, the court determines that the present value of the amount of lost past earnings and the present value of lost future earnings, or the present value of past medical and other health care costs and the present value of the amount of future medical and other health care costs, or both, when added to the present value of other past damages and the present value of other future damages, would exceed such limitation and that the application of such limitation would be unfair, the court may award damages in excess of the limitation equal to the present value of additional future damages, but only for the loss of such excess future earnings, or such excess future medical and other health care costs, or both. For purposes of this section, “present value” has the same meaning as that set forth in section 13-64-202 (7), C.R.S., and “past damages” has the same meaning as that set forth in section 13-64-202 (6), C.R.S. The existence of the limitations and exceptions thereto provided in this section shall not be disclosed to a jury.
33-44-114. Inconsistent law or statute.
Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.
Recreation Law 