By Janet Lewis
As winter approaches, many are preparing for ski and snowboarding season. Skiing, of course, has inherent dangers, whether due to natural conditions (trees, bald spots, ice) or man-made (jumps or lift poles), so it’s always important to think about your safety before heading out to the slopes. Skiers generally assume at least some of the risk these dangers pose the moment they get in the lift line and point their skis downhill.
Limiting Liability
Since 1978, all but three states with a “significant” ski industry have adopted a form of ski safety legislation that in some way limits the liability of ski operators in ski areas, specifically relating to claims from the inherent dangers of skiing.1 While every state’s law is different, they all generally define inherent risks of skiing as something like the “integral” or the “reasonably obvious, expected, and necessary” aspects of skiing or snowboarding. 2 Integral or necessary aspects of skiing can include collisions between skiers, skier’s failure to ski within their own ability, skiing outside designated areas and whether/how trails are groomed. 3
While these laws do give ski resorts strong protections, it may not protect them in all instances. First and foremost, if someone is injured, a ski resort will have to show it demonstrated due care in carrying out its duties. 4 Most states do not protect ski operators for injuries caused by hazards which are not “inherent dangers” including parked heavy machinery in blind spots or collisions with moving equipment. 5 In fact, some states specifically require a ski resort to meet certain safety standards which may include bumpers on all ski lift posts, maintaining properly functioning chair lifts, properly parking/storing snow mobiles and other regulations that if not met, could leave them open to litigation should an injury occur. 6
Ski Resorts are Big Business
Ski resorts are big business in the United States. According to Statista, The Statistics Portal, as of the 2009-10 ski season, there were 477 ski resorts in the country. Furthermore, through the 12-month period ending with the Spring of 2014, there were almost 11 million skiers and snowboarders. That leaves lots of opportunities for injuries to occur. In fact, the National Ski Area Association (NSAA) reports that during the 2013-14 ski season there were 52 catastrophic injuries (paralysis, broken back/neck, life altering severe head injury) and 32 skier/snowboarder fatalities.
So what if you are injured? Do you have any rights? In most cases, your legal rights will depend on how you are injured. Was it caused by the fault of another skier? If so, you may have the right to sue the person who hit you for negligence or recklessness. If it was the fault of the ski resort, your rights are likely greatly limited. Most skiers and other users of a ski resort sign waivers, or a written release and indemnity agreement, upon the purchase of their daily or season pass. In addition, most passes themselves include the waivers and the dangers and rights/responsibilities of skiers are posted at each ski lift.
Court Sides With Resort
When a family sued after the death of their son in an avalanche at a Colorado ski resort, they argued that the resort had a responsibility to protect skiers from avalanches because they know where slides historically happen. The lower courts, however, sided with the resort relying on state law that notes skiers willingly take a risk on the slopes and although avalanche was not specifically covered in the 1979 Colorado act to limit ski resorts liability, it did note all factors that may create or foresee an avalanche. 7
A typical release might include language similar to the one used at Mt. Bachelor (OR).
“In consideration of the use of a Mt. Bachelor pass and/or Mt Bachelor’s premises, I/we agree to release and indemnify Mt. Bachelor, Inc….from any and all claims for property damage, injury, or death…in any way connected with skiing, snowboarding, or snowriding. This release and indemnity agreement shall apply to any claim even if caused by negligence….The undersigned(s) understand that this document is an agreement of release and indemnity which will prevent the undersigned(s) or the undersigned’s’ estate from recovering damages from Mt. Bachelor, Inc. in the event of death or injury to person or property.”8
Bagley v. Mt. Bachelor, Inc.
Despite the language in this written release on the annual pass, when a man was paralyzed following an accident at Mt. Bachelor, he attempted to sue and recover damages. The trial court, in Bagley v Mt. Bachelor, Inc., granted summary judgment based on an affirmative defense of the release signed by the plaintiff, rejecting an argument that the release was unconscionable “since it was not procedurally unconscionable in that it did not surprise the plaintiff and was not impermissibly oppressive. In the end, patrons are free to walk away rather than accept unjust terms in something that is not promote an essential public service.”
When the family appealed, the Oregon high court disagreed with the lower courts, ruling that the liability waiver preventing this paralyzed man from suing the resort over his snowboarding injuries was legally unenforceable, in fact, it was so “unfair or offensive to public policy” that it was unlikely to be upheld by a court. The opinion noted that whether an anticipatory release of a ski area operator’s liability for its own negligence in a ski pass agreement is enforceable may be based on whether the release itself violates public policy and is unconscionable. Further, that this was not an agreement between equals — one party “exercised its superior bargaining strength by requiring its patrons to sign an anticipatory release on a take-it-or-leave-it basis as a condition of using facilities.” The plaintiff had no opportunity to negotiate and there are limited ski areas in Oregon, so there is no meaningful alternative. 9
Possible Implications
So what does this ruling mean moving forward for ski resorts and for guests? Although it’s only directly applicable to Oregon, this could lead the way for ski resorts to face greater scrutiny in their waivers and responsibilities to their patrons and guests. One key take away is that courts are looking closely and are not willing to enforce waivers that are unconscionable. That does not mean that liability waivers, in general, are unenforceable. To the contrary, they are enforceable but may only exculpate the resorts for negligence that can be attributed to dangers considered inherent to the sport. Attorneys on both sides of the issue say that “a combination of litigation and legislation has led to strongly improved safety mechanisms and the creation of a skiers’ code of responsibility.”10
It could also mean changes in other states and for the industry as a whole.
Safety First
Always remember, skiing can be a lot of fun and while you can never guarantee that you won’t get hurt, you can do a few things to lower your risk for injury down the line. Make sure your equipment is in good shape and fits properly. Be aware of your surroundings — other skiers, impediments and the landscape. Ski to your ability and recognize your limitations. In addition, make sure you wear a helmet. According to the NSAA, 73 percent of all skiers and snowboarders wore helmets in the 2013-14 ski season and 88 percent of children under nine wore helmets. New Jersey also became the first (and only) state to require those under 18 to wear helmets.
And finally, follow the “Duties of Skiers” such as those passed by the Legislative Council of Michigan which requires skiers to:
Maintain reasonable control of speed and course at all times
Stay clear of grooming vehicles and equipment
Heed all posted signs and warnings
Ski only in areas marked open
If you are injured, preserve the evidence from your accident — take pictures from all angles including ski tracks, the person who hit you (if applicable), damage to you or your equipment and up the slope and down the slope.11 While your rights may be limited in terms of recovery for damages, recent rulings may also mean the resorts have more responsibility than ever before to ensure you are compensated.
Ms. Lewis is the Director of Sports & Athlete Relations with Philadelphia-based Locks Law Firm. She can be reached at 215-893-0100 or jlewis@lockslaw.com.
1. Ski Accident and Ski Safety Advice. From web October 26, 2015. skisafety.com/ski-area-negligence/
2. Goguen, David. Can a Ski Resort Be Held Liable for Personal Injury After a Skiing Accident? www.alllaw.com/articles/nolo/personal-injury/skiing-accident-resort-liability.html.
3. ibid
4. Chambers, Marcie. Skiing; Who Assumes the Risk on the Slopes? The New York Times, November 21, 1995. www.nytimes.com/1995/11/21/sports/skiing-who-assumes-the-risk-on-the-slopes.html?/pagewanted=all&pagewanted=print
5. Ski Accident and Ski Safety Advice. skisafety.com/ski-area-negligence/
6. Goguen, David. Can a Ski Resort Be Held Liable for Personal Injury After a Skiing Accident? www.alllaw.com/articles/nolo/personal-injury/skiing-accident-resort-liability.html.
7. Moreno, Ivan. Colorado High Court Weighs Ski Resorts’ Avalanche Liability. www.washingtontimes.com/news/2015/sep/29/Colorado-high-court-weighs-ski-resorts-avalanche-1/
8. Recreation Law. Bagley v Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore Lexis 994. Supreme Court of Oregon; May 7, 2014 argued and submitted; Dec 18, 2014 filed
9. ibid
10. Chambers, Marcie. Skiing; Who Assumes the Risk on the Slopes? The New York Times, November 21, 1995. www.nytimes.com/1995/11/21/sports/skiing-who-assumes-the-risk-on-the-slopes.html?/pagewanted=all&pagewanted=print
11. Goguen, David. Injury Lawsuits for Skiing & Snowboarding Accidents. www.alllaw.com/articles/nolo/personal-injury-lawsuits-skiing-snowboarding-accidents.html.
