Question: I recently went up to the mountains to do some skiing. I was with my wife on an intermediate run, and we stopped about halfway down to catch our breath at a flat spot somewhat off to the side of the run.
A young guy on a snowboard uphill from us hit a mound of snow and jumped, and after he landed, he came toward us at a really high rate of speed. He made a quick turn but grazed my wife. Fortunately, no one was hurt, but it did cause quite a scare.
Assuming that something did happen and my wife was hurt, would we have any case against the ski resort or the snowboarder for any injuries?
Answer: If you ride the chairlift alone and you need some light reading, take a look at the fine print labeled “Release of Liability” on the back of your lift ticket. It means what it says.
Yes, you did agree to sign away your ability to sue. The lift ticket is a contract between you and the resort, and its fine print leaves little grounds for you to bring a lawsuit based on negligence.
Even if you did not sign a release of liability, it still would be challenging to successfully proceed with a lawsuit because of a legal doctrine known as the “primary assumption of the risk.”
By engaging in certain sports activities, a person assumes the ordinary and inherent risks of that activity. Football players get tackled, and baseball players sometimes get hit with line drives. It’s part of the sport, and the inherent risks of a sport may even include a participant’s careless behavior.
In skiing, both natural and unnatural conditions of the terrain as well as the inadvertent collision of skiers have been determined to be inherent risks of the sport. In other words, careless skiers are to be expected when you hit the slopes.
Colliding with another skier is the equivalent of a hard football tackle. It’s a bummer if you are hurt, but it will not result in a lawsuit.
Not all conduct on the slopes, however, is careless. A skier’s reckless conduct can render the skier liable. Reckless conduct is defined as conduct far outside the range of the ordinary activity. This could include extreme speed or horseplay.
In one court case, a skier who was throwing snowballs at his brother while skiing was held liable when he collided with another skier. The court found that throwing snowballs while skiing was not an inherent part of the sport.
Your particular situation would involve two defendants, the resort and the snowboarder. Starting with the snowboarder, the claim would depend on the facts to support a finding of recklessness. If the court only sees facts resembling garden-variety negligence, then the case will not proceed. You will need to demonstrate some extreme behavior on the part of the snowboarder.
For the most part, people may be insured for accidents, and you likely will want to bring an available insurer into the case to seek adequate compensation for injuries. But the legal rule here places a plaintiff in a bind.
Allege negligence, the insurance company enters the case, but the case is dismissed because negligence is an inherent risk in the sport. Allege recklessness, the case proceeds, but the insurance company denies the coverage and exits the case, leaving the snowboarder as the only available pocket for financial recovery. Assuming that a young guy on a snowboard does not have deep pockets, your case for recovering damages will be in trouble.
The claim against the resort is that it created a dangerous condition by allowing a jump that close to what could be viewed as a rest spot. The jump caused the snowboarder to pick up speed and crash into your wife.
This claim likely will fail because the inherent risks of skiing involve even manmade changes in terrain. In addition, the resort could point to the contract hanging from your parka at the time of the accident, noting that you assumed the risk of the young snowboarder.
Once you are up on the mountain, know that you have entered a field of play where accidents, even severe ones, are just part of the territory. So do your best to stay safe out there, and by all means wear a helmet.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm specializing in family law, estate planning and trust litigation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at www.kopperlaw.com
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