State High Court Finds Exception to Assumption of Risk on the Ski Slope

Sep 1, 2004

A skier who became injured after a collision with another skier has legal recourse, after all, against the Connecticut-based property and its managers.
While some courts have deemed any collision on the slopes as falling under the umbrella of assumption of risk, the Connecticut Supreme Court has changed positions, identifying an exception to that doctrine
In a 5-2 decision, the majority wrote, specifically, that “a skier does not assume the risk of a collision with another skier when such collision is caused by the negligence of a ski area operator, its agents or employees.”
The accident that led to the litigation occurred on Dec. 4, 1999, when a ski instructor collided with the plaintiff, Mary Ann Jagger, on the intermediate slope at Cornwall’s Mohawk Mountain.
The plaintiff sued for negligence, claiming Mohawk is directly liable for failing to train and properly supervise the instructor and that Mohawk is vicariously liable for the negligence of its employee.
The defendants countered that the plaintiff’s cause of action is: “(1) barred by § 29-212, which provides that skiers ‘assume the risk of and legal responsibility for [injuries] . . . arising out of the hazards inherent in the sport of skiing . . . [including] collisions with any other person by any skier while skiing’; and (2) legally insufficient under our doctrine for co-participant liability in team contact sports as articulated in Jaworski v. Kiernan, supra, 241 Conn. 408-409.”
Reserving judgment on the defendant’s motion, the district court certified the questions of law to the state’s highest court.
The Supreme Court disagreed with the defendant’s argument on the first point, concluding “that a skier has not assumed the risk of injury associated with the sport of skiing when such risk negligently has been created by a ski area operator or when, in the exercise of due care, the operator could have taken steps to minimize such a risk and unreasonably failed to do so.”
Such a finding, noted the court, does not disturb the original purpose of the doctrine of assumption of risk, which, as it applies to ski slopes, shielded ski area operators from liability “arising from the innate danger of the sport.”
“The most authoritative application of this doctrine to the issue of ski liability was Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp. 786, 787, 792 (D. Vt. 1951), in which the United States District Court for the District of Vermont, applying Vermont state law, directed a verdict for the defendants in a negligence action alleging injury as a result of a collision between a plaintiff and a snow-covered tree stump hidden from view on a marked ski trail.”
The court also found support for its opinion in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991). There, the state Supreme Court concluded that “the inherent risks of skiing are those dangers that skiers wish to confront as essential characteristics of the sport of skiing or hazards that cannot be eliminated by the exercise of ordinary care on the part of the ski area operator.” Id., 1046-47.
Agreeing with the Utah high court’s finding, the Connecticut Supreme Court wrote: “(F)or inherent hazards, ski area operators owe skiers no duty of care and skiers assume the risk of those hazards in the primary sense. For those hazards which are not an innate part of the sport of skiing, or over which an operator can act reasonably to eliminate or minimize the potential for harm, operators owe skiers a duty of reasonable care.”
Turning to the second certified question, the court found that “the standard of care implicated in the context of the sport of skiing is that of a duty to refrain from unreasonable conduct and that liability may attach for negligent behavior. Accordingly, we answer the second certified question in the negative.”
Mary Ann Jagger v. Mohawk Mountain Ski Area, Inc., et al.; S.Ct. Conn.; 269 Conn. 672; 6/22/04
Attorneys of Record: Andrew W. Bray, with whom, on the brief, was Lisa M. Gorham, for plaintiff. Philip T. Newbury, Jr., with whom, on the brief, was Melanie A. Dillon, for the defendants.


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