Archive for the ‘Snow Skiing’ Category

Snowmobile Wins Again – Claims of Injured Ski Racer Survive Motion Based on Waiver and Assumption of Risk Statutes (CO)

October 29, 2015

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (Colorado)
(trial court disposition)

Plaintiff was a member of the Sarasota, Florida Ski Team.  She traveled to the Steamboat Springs Ski Resort in Colorado to participate in ski races.  After finishing her second race and exiting the race course, plaintiff skied down a trail and headed toward the ski lift.  She attempted to ski past the lift to a picnic area to meet up with other racers.  However, she collided with a snowmobile that was parked near the lift.  Plaintiff sued the ski resort alleging (1) common law negligence in parking the snowmobile in a dangerous, high-traffic area, and (2) negligence per se under the Colorado Ski Safety Act (“SSA”) by failing to mark and pad the snowmobile.

The defendant moved for summary judgment, arguing (1) that the exculpatory clause contained in the race participation agreement signed by the plaintiff prior to her participation barred the plaintiff’s claims, (2) the common law negligence claim was barred by the SSA (“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”), and (3) the negligence per se claim failed because the SSA does not apply under the circumstances (i.e., with regard to a parked snowmobile).

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Let It Snow – Triable Issue Existed as to Whether Nine Year Old That Collided with Snowmaking Machine Assumed the Risk (PA)

August 19, 2015

MD ex rel Mora-Dillon v. Ski Shawnee (Pennsylvania)
(trial court disposition)

Plaintiff was a nine year old girl that participated in a ski trip with her elementary school as a novice skier with no skiing experience other than three lessons.  As she was skiing down one of the slopes, she collided with a snowmaking machine, suffering several bone fractures and other injuries.  Plaintiff filed a negligence lawsuit against the ski resort, contending that the resort failed to adequately place padding on the metal components of the snowmaking machine.  The ski resort filed a motion for summary judgment, asserting that it had no duty to protect plaintiff from the inherent risks associated with downhill skiing.  Defendant argued that even though plaintiff had no knowledge of the risk presented, the plaintiff implicitly assumed the risk of colliding with snowmaking equipment, negating any duty it had to plaintiff. (more…)

Iced Out – Claim by Skier Who Lost Control Due to Icy Conditions Barred (PA)

June 22, 2015

Smith-Wille v. Ski Shawnee, Inc. (Pennsylvania)
(trial court disposition)

Plaintiff was skiing at the defendant’s ski resort when she encountered icy conditions, causing her to lose control and run into unpadded PVC piping holding a vinyl fence on the ski slope.  Plaintiff suffered personal injury and filed an action against the resort, claiming that there should have been a warning as to the icy conditions.   The defendant filed a motion for summary judgment, arguing that the accident was the result of the inherent risk of skiing.  In opposition to the motion, plaintiff asserted that there were no warnings of the slope conditions that would have allowed her to decide whether or not to proceed in skiing (i.e., she could not assume a risk of which she was not aware).  Plaintiff stated that “her conduct in skiing down the hill in the icy conditions was not voluntary, and that she could not have assumed the risk of any dangerous conditions on the slopes once there was no way to avoid those conditions, namely the ice.”  Plaintiff further contended that she was not adequately warned or the pole or the fencing that she ran into during the incident.

The Court of Common Pleas of Pennsylvania referred to the Pennsylvania Skiers Responsibility Act (“Act”), which was part of Pennsylvania’s comparative negligence statute.  In the Act, the Pennsylvania General Assembly recognized that there were “inherent” risks in the sport of downhill skiing, although those risks were not defined.  The Court concluded that “ice and icy conditions are part of the ‘inherent risks’ envisioned by the General Assembly.”  As such, the defendant did not owe the plaintiff a duty to protect the plaintiff from those conditions.  The Court also pointed out that “from a practical standpoint . . . it would be virtually impossible for a ski area to warn of icy conditions wherever and wherever they may exist.”  Finally, the Court stated that the defendant did not owe a duty to provide plaintiff with an alternate route down the slope.

The Court granted the motion for summary judgment and entered judgment in favor of the defendant.

Reckless Abandon – Allegations of Recklessness and Punitive Damages Survive in Ski Collision Case (PA)

June 11, 2015

Doyle v. Dianna (Pennsylvania)
(trial court disposition)

The plaintiff was skiing with his son in a highly congested area of a ski resort when he was struck by the defendant who was “allegedly skiing abnormally fast, out-of-control, recklessly” and who became airborne such that he was unable to slow down, stop, or avoid the impact.  Plaintiff filed an against against the defendant skier alleging that he acted recklessly and should be liable for punitive damages.  The defendant moved to strike both the references to “recklessness” and the punitive damages claim from the complaint.

Reviewing the applicable standards under Pennsylvania law, the Court of Common Pleas of Pennsylvania denied the defendant’s motion.  The defendant had argued that the complaint lacked specificity to support an allegation of reckless conduct, but the court disagreed, noting that in Pennsylvania “recklessness is a condition of the mind that may be averred generally.”

With regard to the claim for punitive damages, the court stated that it “must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.”  The court then concluded that the plaintiff alleged facts that, if true, were sufficient justify punitive damages.  Plaintiff had alleged:

“Defendant knew he was skiing in an area that ‘is generally highly congested … with other skiers.’ [Citation omitted.]  The Plaintiffs further aver that the Defendant was (a) skiing at an abnormally high rate of speed, (b) jumping and/or becoming airborne ‘rendering himself completely out-of-control and unable to change his course of direction,’ and (c) that he knew that he would not be able to stop in an emergency situation due to the conditions of the area.”

Deeply Depressed – Experienced Skier Claim Relating to “Depressions” in Snow Survives Court Motion (NY)

May 26, 2015

Paulus v. Holimont, Inc. (New York)

The sixty-right year old plaintiff was a self-described “accomplished” skier, who had been skiing since the age of 5.  Plaintiff had participated in various ski races throughout the years, and he had skied on different mountains throughout the world involving varying terrain, including ice and moguls.  Plaintiff drove from his home in Ohio to the defendant’s ski area in New York.  It was his second visit to the defendant’s resort.  On his first run of the day, plaintiff was coming down a trail at the facility called “Corkscrew” (a trail rated “more difficult” with a blue square), when he encountered difficult terrain and crashed, suffering injuries.  Plaintiff used racing skis and boots, and he admitted that he liked to ski fast.  He estimated that he was traveling twenty miles an hour at the time of the incident.  Plaintiff acknowledged that a “blaze orange caution sign was placed directly at the top of the portion of the Corkscrew trail where [he] was injured.”  However, the plaintiff testified that he did not believe he had observed the sign as he cut over to the Corkscrew trail from another trail (i.e., plaintiff believed he skied onto the Corkscrew trail below the caution sign).

Plaintiff (and his wife) sued the defendant for negligence, and the defendant filed a motion for summary judgment, asserting that plaintiff’s claim should be barred by primary assumption of risk.  The trial court acknowledged that in New York “[d]ownhill skier ‘assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and manmade objects that are incidental to the provision or maintenance of a ski facility.'”  The doctrine is recognized in New York’s Safety in Skiing Code.  Additionally, “variations in terrain, including moguls, are recognized risks that are inherent in the sport of downhill skiing.”

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Yard Sale – Skier Not Liable for Collision with Ski Instructor (CA)

May 7, 2015

Rees v. Crawford (Calfornia)

The plaintiff ski instructor filed a negligence lawsuit against a skier who collided with her.  The defendant filed a motion for summary judgment on the grounds that the plaintiff had voluntarily assumed the risk of being injured from a collision with another skier.  Defendant further asserted that her conduct was not reckless because it was “neither completely outside the range of ordinary activity involved in the sport, nor done with a deliberate disregard of the high degree of probability that an injury would result.”  The trial court agreed and granted the defendant’s motion.  Plaintiff appealed.

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Out in the Cold – Ski Lift Ticket Release Agreement Contrary to Public Policy (OR)

April 27, 2015

Becker v. Hoodoo Ski Area (Oregon)

A skier was injured when she was struck by a moving chairlift.  She brought a negligence action against the ski area operator.  The defendant filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law based on a “Release Agreement” that occupied approximately one-half of the face of the lift ticket purchased by the skier on the day in question.  The skier denied having noticed or read the release agreement document.  The skier filed a cross-motion for partial summary judgment, arguing that the waiver and release document that she signed was procedurally and substantively unconscionable.  The trial court granted the defendant’s motion and denied the plaintiff’s motion, and the plaintiff appealed.

On appeal, plaintiff renewed her argument that the waiver and release was unenforceable because it was contrary to public policy and was unconscionable.  The Court of Appeals of Oregon reversed the trial court and remanded the case to trial.  Relying on the Oregon Supreme Court decision in Bagley v. Mt. Bachelor (2014), the Court of Appeals held that the release agreement was unconscionable.  The Court discussed numerous factors that went into the analysis including the “superior bargaining strength” of the defendant, the release agreement being offered on a “take-it-or-leave-it basis,” and the lack of an “opportunity to negotiate for different terms or pay an additional fee for protection against defendant’s negligence.”  The Court further concluded that the “‘enforcement of the release would cause a harsh and inequitable result’ to befall the plaintiffs, and the Court noted that the “defendant’s business operation [was] sufficiently tied to the public interest as to require the performance of its private duties to patrons.”

Wreck-less Behavior

July 20, 2012

Tayar v. Camelback Ski Corporation (Pennsylvania)
(A snow tuber involved in a collision sued a ski resort for negligence and reckless conduct;  the trial court granted the defendant’s motion, dismissing the entire action based on the waiver and release signed by the plaintiff; the decision was overturned on appeal as to the reckless conduct allegations.)

The plaintiff was participating in snow tubing activities at the defendant’s ski resort.  On her fifth run of the day, she was struck by another participant coming down the run.  She was also narrowly missed by others.  Plaintiff filed a complaint against the ski resort, which filed a motion for summary judgment based upon a pre-printed release form that plaintiff had signed prior to participation.  The release applied to all liability that was “the result of negligence or any other improper conduct on the part of the snowtubing facility.”

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Rough Terrain

July 20, 2012

Malaguit v. Ski Sundown, Inc. (Connecticut)
(A skier was rendered a quadriplegic during a fall in the ski area’s “terrain park”; the Court affirmed a general jury verdict in favor of the defendant ski area.)

The plaintiff was 15 years old at the time of the incident.  He attempted to ski over a snow jump in the ski area’s “terrain park” but fell, landing in a way that severely injured his spine.  Plaintiff filed a complaint against the ski area, claiming that it had been negligent in the building and maintenance of the snow jump.  Pursuant to Connecticut’s ski area statute, the defendant argued that the plaintiff had assumed the risk of injury and that the statute was a complete bar to plaintiff’s recovery.  According to the statute, ski areas are not liable for any injuries caused by terrain variations that are the result of “snow grooming.”  The defendant argued that the snow jump had been created as part of a process of snow grooming, such that plaintiff assumed the risks and that his injuries were caused by his own negligence.  The plaintiff countered by claiming that the snow jump was not a hazard inherent in the sport of skiing, unsuccessfully arguing that the jury should not be given instruction relating to the Connecticut skiing statute.  Thereafter, a jury returned a verdict for the defendant, and the plaintiff filed a motion to set it aside.  The motion was denied and the plaintiff appealed.

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Skier v. Snowmobile

May 19, 2009

Robinette v. Snowmass Ski Area (Colorado)
(Federal District Court Rules in Favor of Ski Resort in a Collision Case Based Upon Release)

The Aspen Daily News published an article today discussing the recent decision of a U.S. District Court Judge in Denver Colorado. The article can be found here: http://www.aspendailynews.com/section/home/134580

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