Outline of Practical Aspects of Ski Accidents

• Skier Injuries
• Negligence Cases
• Negligence per se
• Species of Ski Cases
• Sample Case
• Trial of a Ski Case
• Verdicts and Settlements

The statistical incidence of skiing accidents:

1. Deaths: 126 deaths from the 1980-81 through the 1991-92 ski seasons. Colorado Department of Health, "Colorado Snow Skier Deaths" (Health Statistics Section, Colorado Dept. Of Health). The study was based exclusively on death certificates. Men account for 83% of skier deaths. Skiers from 20 to 29 years of age made up 44% of the deaths. "Striking Object" was the leading cause of death with 36.5%. Avalanches caused 34.9% of deaths. Most deaths occurred in the afternoon, during the month of March and within ski area boundaries.
2. The overall injury rate for downhill skiers was 3.37 injuries per 1000 Skier Visits, for snowboarders the rate was 3.03 injuries per 1000SV. When controlled for ability, the differences between SB and DH are not significant. Shealy "Snowboard vs. Downhill Skiing Injuries" (R.I.T. 1993). Beginning skiers are much more likely to be injured than experienced skiers. Novice males have an injury rate of 8.38/1000SV. Advanced males have an injury rate of .88/1000. Novice females have an injury rate of 9.48/1000SV. Advanced females have an injury rate of .94/1000. Knees are the third most frequently injured body part in snowboarding (16.9%) versus the most frequently injured body part in skiing (32.7%).
3. Applying these rates to Colorado, a typical ski season will result in 37,000 injuries and 10 deaths.
4. Aspen Skiing Co., will serve 1.4 million SV in 1995-1996. Therefore, there will be approximately 4,700 contacts by Aspen skiers with ski patrol during this ski season.

1. Graven v. Vail Associates, 904 P. 2d 514, 1995 WL 748057 (As modified on Petition for R'hg., Colo. 1996)."Skiing is a dangerous sport. Ordinary understanding tells us so, and the legislature has recognized that dangers inhere in the sport. . . . Not all dangers that may be encountered on the ski slopes, however are inherent and integral to the sport, and this determination cannot always be made as a matter of law."
2. What are dangers which are not "integral to the sport?" In one case, a Colorado District Court Judge has written, post-Graven, that: "Thus, the Colorado Supreme Court without labeling the determination of the "integral" part of skiing as a duty analysis, has added a new duty for ski area operators -- i.e., whether the ski area operator using reasonable care could have eliminated the inherent danger or risk' of skiing, in determining whether the dangers and risks are integral."Dovey et al. v. Victoria Breckenridge Corporation, 95CV1153 (Order, Denver District Court, Jan. 3, 1996).
3. Some examples of dangers which courts have held that as a matter of law, are not integral to the sport, and have allowed to proceed to trial are:
   1. A rock outcropping, behind a blind corner, on a trail, Mead v. M.S.B., Inc., 872 P.2d 782 (Mont. 1994);
   2. An unmarked road/catwalk, cut into an open slope, White v. Deseelhorst, 879 P. 2d 1371 (Utah 1994), Clover v. Snowbird Resort, 808 P. 2d 1037 (Utah 1991)
   3. An unpadded pole supporting a rope lift maze, Frant v.Haystack Group, Inc., 641 A. 2d 765 (Vt. 1994)
   4. A large mound of ungroomed manmade snow, or "whale," over which a skier skied, and became airborne, landing on his head and neck, Passero v. Killington, Ltd., 1994 WL 326793 (E.D. Pa 6/28/94).

1. Skiing related cases: The duties established under the Ski Act are enforceable in civil actions for negligence pursuant to C.R.S. 33-44-104(1) which provides that the breach of an enumerated duty shall, to the extent that such breach causes injury, constitute negligence.
2. Lift related accidents: C.R.S. 33-44-104(2) A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

1. Skier vs. Skier - collision cases, the uphill skier is presumed to be at fault, Ulissey v. Shvartsman, 61 F. 3rd 805 (10th Cir. 1995). Skiers have the duty to maintain a lookout so as to avoid collisions, to ski within their ability, to remain in control, and to refrain from acting in a manner which may cause or contribute to injury of the skier or others. C.R.S. 33-44-109(1), (2) & (5).
   1. The 1990 amendments explicitly abolish the defense that the risk of being hit by an out of control or unobservant skier is a risk inherent in the sport. C.R.S. 33-44-109(1) as amended: "Notwithstanding any provision of the law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another."
2. Skiers vs. Ski area, lift related accidents.
   1. The common law. Summit County Development Corp. v. Bagnoli, 441 P.2d 658 (1968), imposed the highest standard of care commensurate with the safe operation of the lift. The standard is now set out in C.J.I.Civ.3rd, 12:13. Trigg v. City and County of Denver, 784 F. 2d 1058 (10th Cir. 1986) held that it was proper for a trial court to give both the negligence per se instruction, under the statute, and the common law instruction that the ski area operator must exercise the highest duty of care. C.R.S. 33-44-103(10) provides that the 1990 amendments did not "limit the liability of the ski area operator for injury caused by the use or operation of ski lifts."
   2. Skier v. Ski area operator - lift related accident, the regulatory framework. The Colorado Passenger Tramway Safety Board (PTSB) promulgated rules and regulations for operating ski lifts. See 3 Code Colo.Reg. 718-1, Department of Regulatory Agencies Passenger Tramway Safety Board Rules and Regulations, (1994). Pursuant to 25-5-704(1)(a), the PTSB was directed to "use as general guidelines" the standards contained in the American National Standard for passenger tramways, ANSI B77.1-1992.

      "The Colorado Passenger Tramway Safety Board has adopted, with certain additions, revisions, and deletions, the American National Standards Institute (ANSI) B77.1-1992. . . as its rules and regulations." If a particular rule is not found in the document titled "State of Colorado Department of Regulatory Agencies Passenger Tramway Safety Board Rules and Regulation" then the rule can be found in the ANSI B77.1-1992. 3 Code Colo.Reg. 718-1 Secs. Rule 0.1 Preamble and Incorporation by Reference (1994). Along with other duties, the rules and regulations require the ski lift attendant to assist passengers, maintain surveillance over the lift, load and unload areas, and to stop the passenger tramway immediately in the event of trouble or danger. Secs. 4.3.2.1; 4.3.2.1.3; 4.3.2.3.3, ANSI, B77.1-1992.

   3. Species of lift accidents
      1. Loading/unloading accident
      2. Fall out (safety bar)
      3. Defect in tram
      4. Drive system:
         • Sheaves
         • Grips
      5. Catastrophic failure
3. Skiers vs. Ski area - downhill skiing accident, prior to Graven.
   1. Rosen v. LTV Development, Inc., 569 F. 2d 1117 (10th Cir. 1978) establishing that Colorado ski areas were obliged to exercise due care;
   2. Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671 (Colo. 1985) holding that the former version of the Ski Safety Act was constitutional, and that the duty of the ski area was to exercise reasonable care, although it was presumed that an accident not caused by the breach by the ski area operator of the ski statute, was the skier's fault;
   3. Phillips v. Monarch Recreation Corp., 668 P. 2d 982 (Colo. App. 1983) which held that statutory standards of care could not be limited by more stringent assumption of risk language printed on a ski lift ticket. Accord, Dalury v. S-K-I, Ltd., and Killington Ltd., ___ A. 2d ___, 94-236 (Vt. Sup. Ct. Sept. 8, 1995). "Each ticket sale may be, for some purposes, a purely private transaction. But when a substantial number of such sales take place as a result of the seller's general invitation to the public to utilize facilities and services in question, a legitimate public interest arises."
4. Pre-Graven Commentary: Lisman, Ski Injury Liability, 43 U. Colo. L. Rev. 262 (1972); Chalat, Ski Tips-A Review of Colorado's Ski Safety Act, 9 Colo. Law. 453 (1980); Chalat, Continuing Changes in Colorado's Ski Law, 13 Colo. Law. 407 (1984); Chalat, The Development of the Standard of Care in Colorado Ski Cases, 15 Colo. Law. 373 (1986); Ferguson, Allocation of the Risks of Skiing, 67 Den. U. L. Rev. 165 (1990).
5. Post-Graven Commentary?
6. Species of Skier vs. ski area operator cases - downhill skiing accidents:
   1. Collision with manmade objects, such as: sign or closure post, lift tower, hydrant, grandstand, fireworks mortar, race course closure. "The ski area operator shall mark hydrants, water pipes, and all other man-made structures on slopes and trails which are not readily visible to skiers under conditions of ordinary visibility from a distance of at least one hundred feet and shall adequately and appropriately cover such obstructions with a shock-absorbent material that will lessen injuries. Any type of marker shall be sufficient, including but not limited to wooden poles, flags, or signs, if the marker is visible from a distance of one hundred feet and if the marker itself does not constitute a serious hazard to skiers." C.R.S. 33-44-107(7).
   2. Collision with moving a snow mobile or snow cat.
      1. The collision with a snowmobile is neither an inherent danger explicitly mentioned in, nor was it contemplated as an inherent danger, in the 1990 amendments to Ski Safety Act. C.R.S. 33-44-103(3.5)
      2. All snowmobile operators (including ski areas) have a duty to operate snowmobiles in conformity with the Colorado Snowmobile Act C.R.S. 33-14-116(1) which provides that "No person shall operate a snowmobile in a careless or imprudent manner without due regard for width, grade, corners, curves, or traffic of trails . . . and all other attendant circumstances."
   3. Collision with a natural object, or fall down a natural hazard, e.g., Graven.
   4. Ski instructor's negligence, Miller v. Connley and Aspen Skiing Company, 92-F-303 (D. Colo. 1992); Bradford V. Vail, (Denver Dist. Ct.) Noted in: "Instructions for the Ski Instruction Case," 35 Trial Talk 18, April 1986. Typically, the allegation is that the skier was placed in a class at too high a level, or that the ski instructor led the class into terrain which was above the class's ability, or that the ski instructor ran into the skier during the class.
   5. Patroller negligence in first aid. Spence v. Aspen Skiing Company, 820 F.Supp. 542 (D. Colo. 1993). Ski patrollers have a duty to provide first aid with reasonable care. "Persons providing medical treatment - whether they be hospitals, doctors, nurses, or EMT's - should expect to treat not only patients who fall ill or are injured through no fault of their own, but also those whose own neglect or intentional conduct has placed them in the precarious position of requiring medical treatment. Indeed the latter category of patients is probably as numerous as the former category. All patients, regardless of how they sustain an illness or injury, may reasonably expect competent treatment from those into whose hands they have placed themselves." Duty to rescue? See, Miller v. Arnal Corp., 632 P.2d 987 (Ariz. App. 1981).
   6. Injuries to racers, the effectiveness of waivers. Potter v. National Handicapped Sports, 849 F. Supp. 1407 (D. Colo. 1994). Compare, Del Bosco v. United States Ski Association, 839 F. Supp. 1470 (Colo. 1993) in which the court refused to enforce a waiver sought to be enforced against a child. Accord, Scott v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992), a parent cannot release a child's rights against a tort feasor.
7. Equipment cases. Many people who are injured skiing blame their bindings for failing to release; or, they blame their bindings for releasing too early.
   1. Epidemiological studies conducted by Johnson, RJ & Pope, MH "Epidemiology and Prevention of Skiing Injuries" Ann. Chir. Gynaecol. 1991:80(2) 110-115 report the results of a progressive study of injuries reported to a ski area clinic over a 15 year period, during which the area had 1.7 million skier visits. The research demonstrated a marked improvement in injuries below the knee. However, serious soft tissue knee injuries showed a marked 2.7-fold increase, primarily to the anterior cruciate ligament. The research indicates that injury to the ankle and lower leg has decreased by 85% over the 15-year period (1972 -1987) but that knee injuries have risen to 16% of all skiing injuries.
   2. Safety Standards for Alpine Release bindings have been established by the American National Standards Institute (ANSI) and the American Society for Testing and Materials (ASTM) in the following publications: ASTM Designation F939-85 "Selection of Release Torque Vales For Alpine Ski Bindings"; ANSI/ASTM F473-76 "Binding Mounting Area Dimensions on Alpine Skis"; ASTM Designation: F944-85 "Boot Sole Dimensions of Adult Alpine Ski Boots"; and ANSI/ASTM F504-77 "Release Moments of Adult Alpine Ski Bindings."
   3. Bindings are set to a specific DIN (Deutsche Industrials Norm) calculated upon the height, weight, age, and skiing ability of the skier. The DIN is based upon research for the force necessary to fracture the tibia. Note, that many modern bindings have an upward release component at the toepiece, designed to mitigate the forces which cause ACL ruptures, e.g. upward pressure at the toepiece, combined with rotation of the leg, this is the common scenario for a backward twisting fall of a beginner skier, skiing in a wedge.
   4. Equipment cases present an opportunity for the rental shop to obtain a waiver or release of liability. For a review of the effectiveness of waivers of liability, refer to: Bauer v. Aspen Highlands Corporation, 788 F. Supp. 472 (D. Colo. 1992); Compare, Ghionis v. Deer Valley Resort Company, Ltd., 839 F. Supp. 789 (C.D. Utah 1993).
8. Federal tort claims (FTCA) for related recreational accidents.
   1. Avalanche, Twohig v. USA, 711 F. Supp. 560 (D. Mont. 1989)
   2. Snowmobile, Anderson v. Eby, 998 F. 2d 858 (10th Circ. 1993)
   3. Mountain biking
   4. Discretionary Function exception is applicable in recreational accidents. Childers v. United States, 40 F. 3d 973 (9th Circ. 1995) held that the National Park Service was immune from liability for the death of a child who was killed in a winter hiking accident in Yellowstone National Park.

1. Skier vs. Skier - Vega v. Trail
2. Ski lift unloading accident - Otalora v. Vail
3. Code 1 - Massive injuries, Brown v. Kennedy
4. Avalanche death - out of area death

1. Selecting a theme - what is the morality play? Typically, to overcome the sense of assumption of risk in a ski accident case, the facts need to include the elements of an innocent plaintiff and a villainous defendant.
2. A persuasive opening using exhibits. Present the records of the accident. You must inform the jury of the views of the parties, the topography, the abilities of the witnesses and parties.
3. Sympathetic and compelling witnesses. Never try one of these cases unless you have deposed all of the eyewitnesses.
4. Damages. Ski cases often involve hedonic damages, loss of an ability to recreate, to walk, run or exercise.
5. Excess issues in skier vs. skier cases.

1. H.(a minor) v. T. , Pitkin County District Court, settlement, fractured femur of a 5 year old girl, $200,000.00;
2. Bancroft v. Conger, U.S.D.C., Colo., settlement, fractured femur in a 53 year old office worker, $200,000.00.
3. Land v. Thalman, verdict, a ruptured anterior cruciate ligament, 42 year old administrative assistant, $152,500 (net before interest and costs).
4. Ulissey v. Shvartsman, supra, loss of a career: verdict $2,150,000, reversed and remanded on the trial court's summary judgment for plaintiff on liability. Settled before the second trial which was to be on liability only, for substantially all of the damages which were awarded in the first trial.
5. Benjamin v. Gloz, settlement, impacted and displaced acetabulum, 57 years old periodontist, $401,000.00.
6. Graupner v. Aspen Ski Co., verdict, herniated lumbar disk, meniscus tear, $142,500.00.
7. Hertzfeld v. Vail, verdict, complex tibia fracture, $210,000.00 reduced by 15% for comparative, and then by $55,000 for co-defendants' settlement.