Act and Signed Waiver Protect Defendants in Ski Accident Case

Aug 14, 2009

A federal judge form the District of Massachusetts has granted summary judgment to a group of defendants, who were sued by a skier, who left a proscribed trail and suffered a tragic injury.
The court’s rationale centered on the fact that the collision took place away from the trail and that the skier had signed a liability waiver.
The incident in question occurred on February 18, 2006 during the Williams Winter Carnival, a two-day event at the Jiminy Peak ski area in Hancock, Massachusetts. The event was hosted by the Williams College Outing Club in association with the Williams College ski team.
Kelly Brush, the plaintiff, was competing in the Giant Slalom event during the Carnival. After the Giant Slalom course was set, the plaintiff had an opportunity to ski down the slope to assess the course, which she did. Later, during one of her timed runs, Brush caught an edge of one of her skis and lost control. As a result she left the trail and struck the unprotected lift tower support stanchion. The collision caused life-altering injuries to the plaintiff, including paraplegia.
In her six-count amended complaint she alleged that the severity of her injuries was the result of negligence or gross negligence on the part of the following defendants: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (FIS).
Pier and St. Lawrence University also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race referee for a race on the same trail the day before Brush’s accident.
Before the court were motions for summary judgment from all of the parties.
Jiminy Peak argued that, pursuant to the Massachusetts Ski Safety Act it, as the ski area operator, had no liability because the plaintiff’s injuries “were caused by her collision with an object off the trail. The other defendants asserted that the plaintiff cannot recover from them because she executed a liability waiver that covered the defendants and their alleged negligence when she registered with the United States Ski and Snowboard Association. The third-party defendants argued that as a matter of law they had no obligation to contribute even if the third-party plaintiffs, Pier and St. Lawrence, are liable to the plaintiff.
The plaintiff, on the other hand, asked the court to rule that the MSSA does not bar her claims against Jiminy Peak and the USSA liability waiver is not applicable to bar the claims of the other defendants. She also alleged that the facts are sufficient to permit the case to go to trial on a theory of gross negligence, even if the USSA waiver is valid.
By signing the waiver, “(The plaintiff) unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or his/her property, or to any other person or property, for any loss, damage, expense, or injury (including DEATH), suffered by any person from or in connection with Member’s participation in any Activities in which USSA is involved in any way, due to any cause whatsoever INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.”
In deciding for the defendants, the court found “that the collision was off the course and off the trail. Therefore, pursuant to Mass. Gen. Laws ch. 143, § 71O, the MSSA placed the duty to avoid collisions on the skiier alone.” Furthermore, the court rejected the skiier’s argument that the operator’s duty to her was not fully circumscribed by the MSSA because her injury occurred during the course of a race. “No authority suggested that any ski operator in Massachusetts owed a greater duty to racing skiers than to other, perhaps less experienced, recreational skiers,” wrote the court. “As to the remaining defendants, clear unambiguous language in the USSA waiver indicated that the signer was waiving all claims against the USSA.”
The court concluded by writing: “This is a terribly sad case. A young woman has been tragically, permanently injured. Putting aside considerations of legal liability, somebody connected with the 2006 Winter Carnival should, as a matter of conscience and professionalism, have noticed the unprotected ski tower and made sure that appropriate netting was installed to provide a greater degree of protection to the competitors.
“It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.”
Kelly Brush v. Jiminy Peak Mountain Resort, Inc., et al; D. Mass.; C.A. No. 07-10244-MAP, 2009 U.S. Dist. LEXIS 52204; 6/11/09


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