By James H. Moss, J.D.
D’Amico, v. Great American Recreation, Inc., 265 N.J. Super. 496; 627 A.2d 1164; 1992 N.J. Super. LEXIS 499
Each state where skiing is a significant recreational activity has eventually looked at the standard applied to the operators of the chair lifts when someone riding on the lift is injured. Some courts have held the duty is owed based on the statutory protection afforded by its respective state ski area safety act. A few courts have said the duty is that of the landowner under the state’s premises’ liability act. The majority have analyzed the situation and control held by the skiers1 on the lift and held the ski area operators to the highest standard of care, that of a common carrier.
New Jersey was one of the first states to look at the care owed to riders of a lift and determined the riders need to be protected because of their lack of control. At the same time, the case which came to that conclusion has a marginal fact situation for a chair lift accident.
In D’Amico, the plaintiff was standing in line waiting to board the chair lift. Normally, there is a maze funneling skiers and boarders to a single row waiting in line for the next chair. As the chair passes to load a group of skiers, the skiers at the waiting line move forward to another line to load. In D’Amico, the plaintiff was standing at the waiting line when another skier skied into the chair that the plaintiff was about to be loaded upon. The chair started swinging and struck the plaintiff seriously injuring her. At the time of her injury, the plaintiff had not yet loaded onto the chairlift. She was standing in line.
The plaintiff sued the ski area arguing that the ski area was negligent in the operation and supervision of the chair lift. (When, in reality, the cause of the accident was the skier who had nothing to do with the operation of the chair lift.) In a pretrial motion in limine, the plaintiff moved to have the trial court declare the duty owed by the ski area to riders on the chair lift to be the highest degree of care.
The New Jersey Ski Statute (http://rec-law.us/GUsAwk) is silent on the duty owed to riders on chair lifts like all other state skier safety acts. The court then looked at other states with skiing that had ruled on the issue. Many surrounding states already adopted the common carrier standard of care for chair lifts prior to the enactment of the New Jersey Ski Statute: New York’s statute (Grauer v. New York, 9 A.D.2d 829, 192 N.Y.S.2d 647 (1959)) was later overturned by the legislature, while Vermont (Fisher v. Mt. Mansfield Co., 283 F.2d 533 (2nd Cir.1960)) and New Hampshire by statute adopted the common carrier standard of care. One court in Montana held the ski area to the common carrier standard of care because of prior legislative action, Pessl v. Bridger Bowl, 164 Mont. 389, 524 P.2d 1101 (1974). California, Squaw Valley Ski Corp. v. Superior Court, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897 (1992), adopted the common carrier standard after the passage of the New Jersey Ski Statute.
The court reasoned the common carrier standard was the correct standard because riders on a chair lift have no control over their plight.
A passenger of a common carrier places himself in the care of that common carrier. A passenger is unable to use his own faculties in order to prevent or avoid accidents and is forced to rely on the common carrier to ensure that accidents are avoided. The carrier has this responsibility [***8] because they exercise control of the equipment used in the transportation of the passenger. Only the carrier can ensure that the equipment is in proper working order and is being operated correctly.
Just like a passenger on a train who has no opportunity to ensure that the locomotive is operating properly, a skier cannot determine whether a ski lift is operating properly. When skiers board a ski lift, they are entrusting their care in the hands of another. Once they have committed themselves to riding that chair up the mountain, they are powerless to control their own safety. The chair lifts the skier off the ground as she sits down. The chair is suspended off the ground at considerable distance. The skier has no ability to stop the cable from moving. Furthermore, a skier can’t exit the chair once it has begun [**1167] its ascent. Because of the skier’s helplessness, ski lift operators should be held to the highest standard of care.
The defense argued that the common carrier standard should not apply. The New Jersey Ski Statute required riders of the lift to have special skills in advance of riding the chair lift. Additionally, the ski area does not hold itself out to the public as transportation for compensation and that transporting skiers up the mountain is incidental to skiing.
The court rejected these arguments. First, it found that ski areas provide numerous other services besides skiing, such as snow making, equipment rentals, parking, and food service. The court also found that but for the chair lifts, skiing would not occur and transportation was one of the primary functions of a ski area. (Either the court has insight into New Jersey skiers or ignored the fact that skiing existed for more than one hundred years before the invention of any lift and continues today in many places without uphill transportation.)
The court then justified its application of the common carrier standard to this case where the injured plaintiff was not even on the chair lift at the time of her injury. The court reasoned that passengers must be protected during loading and unloading on other types of transportation. Therefore, they must be protected in a lift line. “The fact that this plaintiff was not physically on the lift when she was injured does not help the defendant. [HN5] The duty of care of a common carrier includes providing a safe means of ingress and egress for its passengers.”
In this case, since this decision has not been overturned or changed by the New Jersey Legislature, in all New Jersey chair lift accidents, the operators of the chair lift are held to the standard of care of a common carrier.
James H. Moss specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers. He is the author of The Lawyer’s Advisor and co-author of Legal Liability and Risk Management in Adventure Tourism. In addition, Moss is the editor of Recreation Law (http://recreation-law.com/), an online legal resource for the outdoor recreation industry, and an adjunct professor at Colorado Mountain College, teaching in the Ski Area Operations program.
