By James Moss
News media and reporters are taking what was in the original bill, ignoring what was removed, and trying to sensationalize it.
In the aftermath of the signing of the North Carolina Ski Liability Act by that state’s Governor, there’s a lot of misinformation flying around about the bill.
Let’s clear some things up:
- There is no crime identified for skiers or snowboarders.
- Hit-and-run skiing is not a crime under this new statute.
- It is not a crime to misuse a ski pass in North Carolina.
What was passed is a law updating the old law to match the changes in the ski industry and not much more. A skier now includes someone who is wearing something on their feet in the winter, participating in winter sports or on a ski slope, ski trail, or freestyle park.
§ 99C-1. Definitions.
Any person who is wearing skis or other winter sports devices or any person who for the purpose of skiing or other winter sports is on a designated and clearly marked winter sports slope, alpine or Nordic ski trail or freestyle terrain that is located at a ski area, or any person who is a passenger or spectator at a ski area.
There is a list of those things that a skier can and cannot do. The requirements for the skier almost read like a repetition of the Skiers Responsibility Code, dependent upon what version you use. (One search I found more than 200 different versions of the Code, including different versions on the National Ski Area Association (NSAA) website and the National Ski Patrol (NSP) website.)
§ 99C-2. Duties of ski area operators and skiers.
(b) A skier shall have the following responsibilities:
(1) To know the range of the skier’s abilities to negotiate any ski slope or trail and to ski within the limits of such ability;
(2) To maintain control of the skier’s speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and obvious hazards and inherent risks, including variations in terrain, snow, or ice conditions, bare spots and rocks, trees and other forms of forest growth or forest debris;
(3) To stay clear of snow grooming equipment, all vehicles, pole lines, lift towers, signs, snowmaking equipment, and any other equipment on the ski slopes and trails;
(4) To heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others;
(5) To wear retention straps, ski brakes, or other devices to prevent runaway skis or snowboards;
(6) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, to avoid moving skiers already on the ski slope or trail;
(7) To not move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug or while such person is under the influence of alcohol or any narcotic or any drug;
(8) If involved in a collision with another skier or person, to not leave the vicinity of the collision before giving his name and current address to an employee of the ski area operator, a member of the ski patrol, or the other skier or person with whom the skier collided, except in those cases when medical treatment is required; in which case, said information shall be provided as soon as practical after the medical treatment has been obtained. If the other person involved in the collision is unknown, the skier shall leave the personal identification required by this subsection with the ski area operator;
(9) Not to embark upon or disembark from a passenger tramway except at an area that is designated for such purpose;
(10) Not to throw or expel any object from a passenger tramway;
(11) Not to perform any action that interferes with the operation or running of a passenger tramway;
(12) Not to use such tramway unless the skier has the ability to use it with reasonable safety;
(13) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties;
(14) Not to embark upon a passenger tramway without the authority of the ski area operator;
(15) If using freestyle terrain, to know the range of the skier’s abilities to negotiate the terrain and to avoid conditions and obstacles beyond the limits of such ability that a visible inspection should have revealed.
Although the above section is new to North Carolina in a statute, it is not new to how skiers act in all other states with skiing.
The ski area operators list is almost identical to the old act. There is a list of what ski area operators must do in all other states that is extremely similar to North Carolina’s old ski area safety act. Neither list is different from the majority of other state skier safety acts, nor is there anything new or radical in the law. Overall, it broadened the definitions of skiing, skiers, and ski area operators to keep up with the changes in skiing over the past 25 years.
(c) A ski area operator shall have the following responsibilities:
(1) To mark all trails and maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or moving in the ski area;
(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;
(3) To indicate the relative degree of difficulty of a slope or trail by appropriate signs. Such signs are to be prominently displayed at the base of a slope where skiers embark on a passenger tramway serving the slope or trail, or at the top of a slope or trail. The signs must be of the type that have been approved by the National Ski Areas Association and are in current use by the industry;
(4) To post at or near the top of or entrance to, any designated slope or trail, signs giving reasonable notice of unusual conditions on the slope or trail;
(5) To provide adequate ski patrols;
(6) To mark clearly any hidden rock, hidden stump, or any other hidden hazard known by the ski area operator to exist;
(6a) To inspect the winter sports slopes, alpine and Nordic ski trails, and freestyle terrains that are open to the public at least twice daily and maintain a log recording: (i) the time of the inspection and the name of the inspector(s); and (ii) the general surface conditions, based on industry standards, for the entire ski area at the time of the inspections;
(6b) To post, in a conspicuous manner, the general surface conditions for the entire ski area twice daily; and
(7) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties.
Again, nothing earth-shattering, just trying to keep up with an ever-changing sport. However, there are a few areas that may lead to more litigation.
Section 13 will allow constant battles in courtrooms, as are occurring in many states, as to who was at fault when two (or more) people on the slope collide.
…engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties
Proving willful conduct will be the goal of every plaintiff in an attempt to define that as a gross negligent act. Add to that, contributing to or causing injury to another person could include just skiing past someone in a way that makes them fall. Most other states require a physical collision before liability attaches to a party and an injury; how the courts are going to interpret this will be interesting.
A few big holes seemed to have been opened for suits against ski areas. The first is that a ski area must provide adequate ski patrols. Adequate could be defined as both a number and the training. On a busy Saturday, every ski patroller on the mountain (or hill) is working. Was that an adequate number? I don’t see ski areas limiting lift ticket sales if the ski area is short a ski patroller or two.
The second is to inspect the trails twice a day and then to post that information about the condition of the trails. Is that a specific job, with a title, Ski hill analyst and reporter? Or can ski patrollers or any employee report what run they were on and its condition?
The biggest area that will allow lawsuits against ski areas is that a violation of any of the listed requirements required of an operator is negligence. § 99C-3. Violation constitutes negligence. The statute seems to do away with the normal requirements for proving negligence and just says, if you don’t do what is required on this list, you are negligent.
One hole was closed for ski areas; the statute states that operating a lift does not constitute being a common carrier. § 99C-5. Operation of passenger tramway.
There is no misdemeanor identified in the statute. There is a misdemeanor in the North Carolina Article 15. Passenger Tramway Safety. A ski area could be subject to a misdemeanor for operating a lift that has not been registered or after the lift has been suspended by Article 15. Passenger Tramway Safety, Tramway Commissioner. § 95-124. Suspension of registration.
Conclusion
No matter the fireworks and headlines about the new North Carolina law, it really did not break with tradition in the ski industry, did not break new ground, and only seemed to make it a little easier to sue ski areas.
You can read the act for yourself here. https://rec-law.us/NC-Ski
