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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

33-44-104. Negligence – civil actions.

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

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

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

What about the ski area?

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

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

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

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

Other state ski area statutes

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

[Emphasize added]

Connecticut

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

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

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

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

No skier shall:

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

Idaho

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

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

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

§ 6-1106. Duties of skiers

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

North Carolina

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

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

North Dakota

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

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

53-09-05. DUTIES OF PASSENGERS.

Every passenger shall have the duty not to:

8. Wear skis without properly securing ski retention straps.

New York

§ 18-105. DUTIES OF SKIERS

All skiers shall have the following duties:

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

Oregon

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

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

Virginia

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

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

So, What Now?

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

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

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

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

That leaves several unanswered questions.

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

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

Copyright 2017 Recreation Law (720) 334 8529

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Douglas County, Nevada, Skier Responsibility Code

Douglas County, Nevada Criminal Code 9.08 Skier Responsibility Code

Title 9 Criminal Code

9.08 Skier Responsibility Code

9.08.010 Definitions

9.08.020 Assumption of risks

9.08.030 Skier duties

9.08.040 Operator’s notice to skiers of duty

9.08.050 Skiers in competition

9.08.055 Prohibition against intoxication and use of controlled substances; penalty

9.08.060 Penalties for violations

9.08.010 Definitions

A.     “The inherent risks of skiing”: Those dangers or conditions which are an integral part of the sport of skiing, snowboarding, snowshoeing, sledding, or any other winter sporting activities including, but not limited to, changing weather conditions, variation or steepness of terrain, snow or ice conditions, surface or subsurface conditions, whether man-modified or not, bare spots, creeks, gullies, rocks, forest growth or stumps, lift towers and other structures and their components, collision with other skiers and a skier’s failure to ski within the skier’s own ability.

B.     “Injury”: Any personal injury or property damage or loss suffered by a skier, ski area operator or ski area.

C.     “Skier”: Any person who is within the boundaries of a ski area for the purpose of engaging in the sport of skiing, alpine or Nordic, snowboarding, snowshoeing, sledding, or any other winter sporting activities where a person travels the slopes of a ski area with the aid of a device, or any person who is within the boundaries of the ski area for the purpose of observing any skiing activity.

D.     “Ski area”: Any area designated and maintained by a ski area operator for the purpose of skiing, or for the observance of any skiing activity.

E.     “Ski-area operator”: Any corporation, person, or their agent, officer, employee or representative, who operates a ski area within Douglas County. (Ord. 1102, 2005; Ord. 693, 1995; Ord. 410, 1983)

9.08.020 Assumption of risks

A.     Any skier, or person who engages in the sport of skiing, snowboarding, snowshoeing, sledding, or any other winter sporting activities, or any person who is within the boundaries of a ski area for the purpose of observing any skiing activity, accepts and assumes the inherent risks of activity as they are reasonably obvious, expected or necessary.

B.     Any skier or person who skis or snowboards in any area designated closed for skiing within the ski area assumes the inherent risks of the activity.

C.     Any person who skis or snowboards outside of a ski area boundary assumes the inherent risks of the activity, and is responsible for all costs arising out of search and rescue efforts made on their behalf. (Ord. 1102, 2005; Ord. 410, 1983)

9.08.030 Skier duties

A.     Skiers have the following duties:

1.     Skiers are the sole judges of the limits of their skills and their abilities to meet and overcome the inherent risks of skiing, and must maintain control of their speed and course to avoid injury to persons or property.

2.     Skiers must familiarize themselves with the posted information supplied by the ski-area operator on location and degree of difficulty of trails and slopes to the extent reasonably possible before skiing on any slope or trail.

3.     Skiers must not cross the uphill track of any surface lift except at points clearly designated by the ski area operator.

4.     Skiers must not overtake any other skier except in a manner to avoid contact with the overtaken skier, and must grant the right-of-way to the overtaken skier.

5.     Skiers must yield to other skiers when entering a trail or starting downhill.

6.     Skiers must use retention straps or other devices to prevent runaway skis or snowboards.

7.     Skiers must 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 must follow any written or verbal instructions that are given by the ski-area operator or representative regarding the use of the devices delineated in this section.

8.     Skiers, when involved in a skiing collision with another skier which results in bodily injury to the other skier, must not depart from the ski area without first leaving their names and addresses with the ski patrol or ski-area operator of the ski area where the injury occurred, or its designated agent. Any skier that violates this subsection is guilty of a misdemeanor.

9.     A skier who is bodily injured, if reasonably possible, must give notice of the injury to the ski-area operator before leaving the ski area.

10.    Skiers must not embark or disembark from a ski lift except at designated areas, or by the authority of the ski-lift operator.

11.    A skier, having used a ski lift or surface lift of a ski area, must no ski under a manmade barrier that is designed to prohibit a skier from entering a closed portion of the ski area or from leaving any part of the ski area. For the purpose of this section, a barrier may be designated by roping off an area. Any skier that violates this subsection is guilty of a misdemeanor.

B.     Any violation of the duties delineated in this section creates a presumption that the person violating the duty intended all the foreseeable consequences of the violation.

C.     A ski area operator may revoke the license or privilege of a person to ski or snowboard in a ski area who violates any of the provisions of this chapter. (Ord. 1102, 2005; Ord. 410, 1983)

9.08.040 Operator’s notice to skiers of duty

Ski-area operators must give notice to skiers of their duties as listed in section 9.18.030 in a manner reasonably calculated to inform skiers of those duties. (Ord. 1102, 2005; Ord. 410, 1983)

9.08.050 Skiers in competition

The ski area operator must, prior to the beginning of any skiing or snowboarding competition, allow each competitor a reasonable visual inspection of the course or area within which the competition is to be held. (Ord. 1102, 2005; Ord. 410, 1983)

9.08.055 Prohibition against intoxication and use of controlled substances; penalty

A.     A skier must not ski, snowboard, or embark on a ski lift while intoxicated from alcohol or under the influence of a controlled substance as defined in chapter 453 of NRS, unless in accordance with a prescription issued to the person by a physician, podiatric physician or dentist.

B.     A person who violates a provision of this section is guilty of a misdemeanor. (Ord. 1102, 2005; Ord. 693, 1995)

9.08.060 Penalties for violations

A.     Misdemeanor. Any person convicted of violating the provisions of subsections 9.08.030(A) (8), 9.08.030(A) (11) is guilty of a misdemeanor.

B.     Infraction. Any person convicted of violating the provisions of sections 9.08.030(A) (3), 9.08.030(A) (4), 9.08.030(A) (5), 9.08.030(A) (7), 9.08.030(A) (9) or 9.08.030(A) (10), is guilty of an infraction. (Ord. 1102, 2005; Ord. 693, 1995; Ord. 645, 1994; Ord. 410 §1, 1983)

 

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Will the ski industry ignore itself into litigation nightmares or will it decided to make skiers assume the risk

Angland v. Mountain Creek Resort, Inc., 2011 N.J. Super. Unpub. LEXIS 2542

The issue as identified in this case is ongoing throughout the US, is the standard of care reckless skiing, the standard of care in most of life or just failing to ski perfectly.

This is another case that cannot be relied upon for any major legal principle because it is still facing months or years of litigation. However, it identifies an issue in the ski industry, and probably other industries in the future on the standard of care a skier owes another skier. (In this case I use the term skier to mean anyone on the mountain, skier, boarder, telemark skier, snow bike, etc.)

Is the standard of care that of someone acting recklessly or is the standard of care violating the “skier’s responsibility code?”

This case

The case is simple with drastic consequences. A snowboarder and a skier were on the same slope. Allegedly, another person cut the snowboarder off, and he quickly turned to his left colliding with Angland, the deceased. Angland fell and slid a distance into a wall where he died. Here is the court’s interpretation of what happened.

In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland’s assistance.

The family/estate of the deceased sued the ski area, Mountain Creek and the snowboarder. Mountain Creek and the snowboarder filed motions for summary judgment. Mountain Creek was dismissed from the suit based on the New Jersey Ski Statute. The court held that there was enough factual issue in the arguments of the parties that had to be decided by a jury so therefore the snowboarder was not dismissed from the case.

The main issue appears to be did the snowboarder violate the standard of care as set forth in the New Jersey Ski Statute. The relevant part of the statute is:

N.J.S.A. § 5:13-4. Duties of skiers  

(4)        Knowingly engage in any act or activity by his skiing or frolicking, which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

The expert witness for the plaintiff testified that the snowboarder did violate the statute and consequently, the standard of care when he deviated “… from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”

If you are turning to avoid a collision, you are maintaining a proper lookout. If you are a goofy footed snowboarder you have limited vision to your left. Again, if you are avoiding a collision or a problem, you turn in skiing and boarding.

The court did not dismiss the complaint of the snowboarder because the court believed the snowboarder may have violated the statute. The statute is not aligned with the other states in how it describes the standard of care leaving a large whole in understanding what level of care is owed by one skier to another.

Do any of those issues rise to the level that they are reckless?

In the past, the standard to determine if a skier was skiing in a negligent manner was whether the skier was skiing recklessly. Reckless skiing is defined as:

….intentionally injure or engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro v. Petrick, 93 Cal. App. 4th 83; 112 Cal. Rptr. 2d 185; 2001 Cal. App. LEXIS 2725; 2001 Cal. Daily Op. Service 9124 (California)

Carelessness and recklessness,’ though more than ordinary negligence, is less than willfulness or wantonness.” Strawbridge vs. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14561 (North Carolina)

A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport. Fontaine v. Boyd, 2011 R.I. Super. LEXIS 27 (Rhode Island)

done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff. Stamp, v. The Vail Corporation, 172 P.3d 437; 2007 Colo. LEXIS 1082 (Colorado)

…recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent, Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 2005 Conn. LEXIS 500

Recklessness is not intentional acts; it is just short of that. The expert in this case looked at the issues and identified three things that the defendant snowboarder did that violated the New Jersey Ski Statute:

·        failed to keep a proper lookout

·        made a panic stop

·        turned to his left in front of decedent

In my opinion, none of the actions of the defendant in this case violated the standard of care. Looking at this from the standard of care of all other states with ski areas the defendant snowboarder was not reckless. However, if the plaintiff’s bar has its way, the actions of the defendant snowboarder may have violated the skier responsibility code.

The heart of the argument is the plaintiffs are attempting to change the standard of care from reckless to a much lower level. Usually, that level is aligned with the public-safety program developed by the National Ski Patrol called the Skier Responsibility Code. A few caveats about the code.

          1. It is not set in stone; in fact, an internet search for the code will identify dozens of different codes. The version on the National Ski Patrol website and the National Ski Area Association website are even different.

          2. It was created as a guideline, not a standard of care.

          3. Only Montana has incorporated the code in its statute.

So Now What?

My issue with the entire issue is no one seems to want to take a stand and say this is going to be a disaster if we don’t do something about it. Allowing the definition of a breach of the standard of care between skiers/boarders on the slope is going to cost ski areas a lot of money, more so if they are not named in the suit.

Every lawsuit based ski area land; the ski area is going to have to do things that cost money.

1.      Copies of reports, maps, and ski patrol information must be identified and provided to opposing parties.

2.    Employees will be deposed and attend trial; the resort is going to have to pay them to attend.

3.    When employees are being deposed, and possibly attend trial, attorneys are going to have to be hired to represent the employees.

These are just three quick instances. This does not include such things as closing the slope for a site inspection. If only two employees are subpoenaed think of the cost of preparing for deposition, being deposed, preparing for trial and attending a trial to a ski area.

This is very expensive and if the ski area is not named in the suit, there is no insurance to cover these costs.

From the perspective of this case, there is a lot left to argue. We can only wait and see what the outcome is, if we ever learn.

From the perspective of the ski industry, the industry needs to realize that this is only going to get worse.

The industry needs to:

·        Inform people that collisions, unless reckless or intentional are assumed and part of the risk of skiing. California has done this.

·        Change statutes to say that collisions in skiing, like in football, basketball, soccer, baseball are part of the risk of skiing, and a participant assumes the risk.

·        Define the Skier Responsibility Code as help, not the standard of care.

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