When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence

Skier 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.

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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