"Hitting the Slopes" - The Inherent Risk of Ski Injuries
It’s that time again – the Winter Olympics – when we stare in awe at professional Olympians who can perform ski racing and ski jumps with relative ease. Perhaps we wonder how one gets to such a high level of performance. The answer is practice. But what happens when you’re practicing on the slopes and things go terribly wrong?
Skiing, which is legally defined as also including snow tubing, snowshoeing, and snowboarding, is a dangerous sport. Risks include but are not limited to collisions with other skiers, collisions with trees or other stationary objects, and falls from heights including ledges and ski lifts. Given the inherent risk of the sport, most state statutes limit or exclude ski resort operators from liability for these injuries.
While most states acknowledge that the owner/operator of a ski area must adhere to strict rules regarding proper maintenance and operation of the ski areas, liability on the part of a ski area owner or operator is usually limited. In New Hampshire, skiing and other winter activities are a huge part of the economy along with winter tourism. Numerous lawsuits borne out of the natural inherent risks of these winter sports would put a lot of resorts out of business. Therefore, liability on the part of the ski area operators is excluded.
New Hampshire, RSA 225-A:1 specifically states:
The state of New Hampshire finds that the sports of skiing, snowboarding, snow tubing, and snowshoeing are practiced by a large number of citizens of the state of New Hampshire, and also that skiing, snowboarding, snow tubing, and snowshoeing attract to the state of New Hampshire large numbers of nonresidents significantly contributing to the economy of New Hampshire. Therefore, it shall be the policy of the state of New Hampshire to protect its citizens and visitors from unnecessary mechanical hazards in the operation of ski tows, lifts, nordic ski jumps and passenger tramways, to ensure that proper design and construction are used, that board accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of ski tows, ski lifts, nordic ski jumps and passenger tramways. The primary responsibility for operation, construction, maintenance and inspection rests with the operators of such passenger tramway devices. The state, through its passenger tramway safety board, as hereinafter provided, shall register all ski lift devices and nordic ski jumps, establish reasonable standards of design and operational practices, and make such independent inspections as may be necessary in carrying out this policy. Further, it shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and nordic ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.
New Hampshire also enacted RSA 225 A:3 which outlines the responsibilities of the ski operator which include designating the trails, providing a visible trail board to warn of any dangerous conditions, and to notify skiers of Nordic ski jumps and that jumping is entirely at their own risk.
Massachusetts enacted laws that specify the responsibilities of a ski operator while still refusing to hold ski operators liable for injuries borne out of the inherent risk of skiing. M.G.L Ch. 143 § 71N requires ski area operators to provide notice of the location of equipment on their slopes, to mark all trails and furnish all maintenance and emergency vehicles with flashing or rotating lights, to mark all hydrants and to specifically post the statute of limitations on lift tickets. Additionally ski operators are required to be responsible for the maintenance and operators of is ski areas in its control and to maintain the areas in a reasonably safe condition or manner PROVIDED HOWEVER “that ski area operators shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.”
In the rare instance that a claim could be brought for negligence against a ski area operator in Massachusetts, M.G.L. Ch. 143 § 71 P states:
No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury. Failure to give the foregoing notice shall bar recovery, unless the court finds under the circumstances of the particular case that such ski area operator had actual knowledge of said injury or had reasonable opportunity to learn of said injury within said ninety-day period, or was otherwise not substantially prejudiced by reason of not having been given actual written notice of said injury within said period. In a case where lack of written notice, actual knowledge, or a reasonable opportunity to obtain knowledge of any injury within said ninety-day period is alleged by such ski area operator, the burden of proving substantial prejudice shall be on the operator.
An action to recover for such injury shall be brought within one year of the date of such injury.
DUTIES OF SKIERS
Both states go further and outline the Duties of Skiers. In Massachusetts, M.G.L. Ch. 143 § 71 O outlines these duties:
No skier shall embark or disembark upon a recreational tramway except at a designated location and during designated hours of operation, throw or expel any object from any recreational tramway while riding thereon, act in any manner while riding on a recreational tramway that may interfere with its proper or safe operation, 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 cross the uphill track of a recreational tramway except at designated locations. A skier shall maintain control of his speed and course at all times, and shall stay clear of any snow-grooming equipment, any vehicle, towers, poles, or other equipment.
A skier who boards a recreational tramway shall be presumed to have sufficient abilities to use the same, and shall follow any written or oral instruction given regarding its use and no skier shall embark on a recreational tramway without authority of the operator. A skier skiing down hill shall have the duty to avoid any collision with any other skier, person or object on the hill below him, 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 person involved and not that of the operator, and the responsibility for the collision with any obstruction, man-made or otherwise, shall be solely that of the skier and not that of the operator, provided that such obstruction is properly marked pursuant to the regulations promulgated by the board. No skier shall ski on any ski slope or trail or portion thereof which has been designated closed, nor ski on other than an identified trail, slope or ski area. Any person skiing on other than an open slope or trail within the ski area shall be responsible for any injuries resultingfrom his action. A skier shall be presumed to know the range of his own ability to ski on any slope, trail or area. A skier shall be presumed to know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots, and shall assume the risk of injury or loss caused by such inherent risks. A skier shall, prior to his entrance onto the slope or trail, other than one designated for cross-country skiing, or embarking on any recreational tramway, have attached on his skis, a strap or other device for the purpose of restraining or preventing a runaway ski. A ski area operator who finds a person in violation of this section, may issue an oral warning to that individual. A person who fails to heed the warning issued by such ski area operator shall forfeit his recreational tramway ticket and recreational tramway use privileges and may be refused issuance of another such ticket to the recreational tramway.
In New Hampshire RSA225-A:24 outlines the responsibility of skiers and passengers on a tramway as:
It is hereby recognized that, regardless of all safety measures which may
be taken by the ski area operator, skiing, snowboarding, snow tubing,
and snowshoeing as sports, and the use of passenger tramways associated
therewith may be hazardous to the skiers or passengers. Therefore:
I. Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; terrain, lift towers, and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.
II. Each skier and passenger shall have the sole responsibility for knowing the range of his or her own ability to negotiate any slope, trail, terrain, or passenger tramway. Any passenger who boards such tramway shall be presumed to have sufficient knowledge, abilities, and physical dexterity to negotiate the lift, and no liability shall attach to any operator or attendant for failure to instruct persons on the use thereof.
III. Each skier or passenger shall conduct himself or herself, within the limits of his or her own ability, maintain control of his or her speed and course at all times both on the ground and in the air, while skiing, snowboarding, snow tubing, and snowshoeing heed all posted warnings, and refrain from acting in a manner which may cause or contribute to the injury of himself, herself, or others.
IV. Each passenger shall be the sole judge of his ability to negotiate any uphill track, and no action shall be maintained against any operator by reason of the condition of said track unless the board, upon appropriate evidence furnished to it, makes a finding that the condition of the track, at the time and place of an accident, did not meet the board's requirements, provided however, that the ski area operator shall have had notice, prior to the accident, of the board's requirements the violation of which is claimed to be the basis for any action by the passenger.
V. No skier, passenger or other person shall:
(a) Embark or disembark upon a passenger tramway except at designated areas.
(b) Throw or drop any object while riding on a passenger tramway nor do any act or thing which shall interfere with the running of said tramway.
(c) Engage in any type of conduct which will contribute to cause injury to any other person nor shall he willfully place any object in the uphill ski track which may cause another to fall, while riding in a passenger tramway.
(d) Ski or otherwise use a slope or trail which has been designated "closed'' by the operator without written permission of said operator or designee.
(e) Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail board by the operator.
(f) Cross the uphill track of a J bar, T bar, rope tow, wire rope, or similar device except at locations approved by the board.
(g) Ski or otherwise access terrain outside open and designated ski trails and slopes or beyond ski area boundaries without written permission of said operator or designee.
Also in Massachusetts, like a hit and run accident, pursuant to M.G.L. Ch. 1443 § 71 Q, there are penalties for leaving the scene of a skiing accident including a fine of not less than $100.
The courts often create laws during the course of trying cases within the court system. This is known as “case law.” Case laws often address issues with current laws or clarify laws that are already out there and are often referred to in future lawsuits and form the basis of current laws today. There have been instances in both New Hampshire and Massachusetts where local lawyers have tried to challenge the current statutes regarding ski area operators. Some recent cases and their outcomes are discussed below.
In Cecere v. Loon Mountain Recreation Corp. 923 A. 2d 198, 155 NH 298, NH 2007, back on January 3, 2004, Louis Cecere was snowboarding on Loon Mountain. He attempted to navigate the “Tombstone Jump” but failed to land safely. He therefore sustained serious injuries and died two days later. His mother (the plaintiff) brought a lawsuit against Loon Mountain and her lawyers argued that the ski area was negligent and violated the NH Consumer Protection Act. Defense counsel argued that pursuant to RSA 225-A, as outlined above, Loon Mountain was immune to liability in this case. The trial court concurred and the case was dismissed at summary judgment. The plaintiff appealed to the Supreme Court.
The plaintiff further asserted that before the statute was amended in 2005, it did not include “snow boarder” and her son was not a “skier” as he was using a snow board. However, the court disagreed stating that the definition of a “skier” was not one who is using skis but rather one who is utilizing a ski area under the control of a ski operator for the purpose of using the trails etc.
The plaintiff then asserted that as the jump was man-made, it was not an inherent risk of skiing. RSA 225 A:24 mentions “variations of terrain” and the plaintiff contended that this would referred only to variations in terrain which occurred naturally. The court disagreed.
The plaintiff then asserted that the defendant was negligent in the design, construction or maintenance of the jump. The court determined that it was not the jump but rather the act of skiing which caused the decedent’s injuries and therefore Loon Mountain was immune from liability as the decedent was injured by the “inherent risk of skiing.”
The Supreme Court therefore affirmed the decision of the trial court and the case was dismissed.
In Massachusetts, a similar issue was raised regarding a jump mogul. In Lieberman v. Union Pier Terminal, 874 N.E.2d 505 (2007). On February 6, 2003, the plaintiff, Eli Lieberman, was skiing at the Berkshire Ski Area when he collided by another skier who was performing a 360 degree midair spin. The plaintiff asserted that Unions Pier Terminal, the owner and operator of Berkshire Ski Area was negligent by not destroying and/or preventing the building of the bump/jump that the other skier had jumped off of. Defense counsel moved for summary judgment on the grounds that the ski operator is immune from liability and the court granted it.
On appeal, the plaintiff argued that the defendant knew or should have known that skiers and snowboarders using the trail continuously rebuilt the bump, which had a jump path straight into the unaware skiers below. Defense counsel argued that the bump or mogul in question was a naturally occurring lump of snow caused by skiing traffic. Since the plaintiff did not provide sufficient evidence to demonstrate that the defendant in fact did know that skiers or snow boarders were building up that particular mogul, the court rules in favor of the defendant.
WHAT THIS MEANS FOR YOU
Winter sports are a fun part of New England winters and many people will continue to participate in them. However, it is important that you are aware of these inherent risks of the sports and that there may be no remedy in court for personal injuries you sustain in the pursuit of these winter activities. Cases may continue to be brought in front of the courts for consideration but it seems unlikely that these statutes and laws will be amended anytime in the near future.