A New Jersey state court has denied a motion for summary judgment brought by a snowboarder, whose alleged negligence caused the death of another skier who was sharing the slopes with him.
In so ruling, the court found that “material facts” remain about defendants William Tucker Brownlee’s “conduct” in the incident.
The plaintiffs in the case were the parents of Robert Angland. On Friday, January 19, 2007, shortly before noon, Angland suffered injuries resulting in his death while skiing at a ski area operated by defendant Mountain Creek. “The facts are sharply disputed,” wrote the court. “However, all parties agree that just before the accident, defendant William Tucker Brownlee was snowboarding at Mountain Creek on the same slope as the decedent. Brownlee and Angland made contact.
“Besides these two points, the parties’ versions of the facts diverge. According to Brownlee, as he was snowboarding on the far right side of the trail, an unidentified skier wearing a brown puffy jacket came from his left and cut directly in front of him. In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee’s snowboard and the decedent’s skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst, and died as a result. Brownlee stopped sliding, stood up and went to Angland’s assistance. The ski patrol arrived and took the decedent for medical assistance.”
The plaintiffs countered that “there were almost no skiers on the trail at the time of the collision,” according to the court. Plaintiffs allege that Brownlee’s “phantom skier” scenario is impeached by other evidence.
Shortly after the accident, Brownlee told numerous people that he was cut off by another skier. However, in not one of Brownlee’s statements “did he identify the phantom skier by way of age, sex or clothing.”
In addition, the plaintiffs’ liability expert, Irving S. Scher, Ph.D., a Biomechanical Engineer, pined that Brownlee violated the standard of care set by N.J.S.A. 5:13-1 to -11 (Ski Act), the New Jersey statute that defines the duties involved in skiing. Specifically, N.J.S.A. 5:13-4 provides the duties of a skier. According to the report,” the deviation from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.”
The plaintiffs sued Mountain Creek and Brownlee, and both defendants moved for summary judgment. The court ruled earlier that Mountain Creek was entitled to summary judgment on the issue of the Ski Act providing a standard of care.
The Ski Act also played a role in the court’s consideration of Brownlee’s motion. “Although the main legislative intent was to define the responsibilities of skier and ski area operations towards each other, the Legislature also intended to create a standard of conduct for skiers towards other skiers. N.J.S.A. 5:13-4 provides in pertinent part:
Duties of skiers
a. Skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
b. No skier shall:
(4) Knowingly engage in any act or activity by his skiing or frolicking which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.
d. A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.
g. No person on foot or on any type of sliding device shall knowingly operate said device so as to cause injury to himself or others, whether such injury results from a collision with another person or with an object.”
The court also pointed to N.J.S.A. 5:13-5, which provides:
“Assumption of risk of skier. A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.”
The court noted that questions remain about Brownlee’s conduct. “Disputes exist as to the presence of a phantom skier, and as to how and where decedent was injured,” the court wrote. “These factual disputes must be decided by the jury and summary judgment is precluded.”
Daniel Angland et al. v. Mountain Creek Resort, INC. et al.; Super.Ct.N.J., App. Div.; DOCKET NO. A-3100-10T4, 2011 N.J. Super. Unpub. LEXIS 2542; 10/7/11.
Attorneys of Record: (for appellant) John Burke of Burke & Potenza. (for respondents)
Phillip C. Wiskow of Gelman, Gelman, Wiskow & McCarthy. Samuel J. McNulty and John F. Gaffney).
