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ALASKA Cases: In Hiibschman ex rel. Welsh v. City of Valdez, 821 P.2d 354 (Alaska 1991), the court held that it was a question for the trier of fact whether a manmade jump was a dangerous artificial condition or an inherent danger; the court also held that a skier's breach only serves to reduce recovery on a theory of comparative negligence. In University of Alaska v. Shanti, 835 P.2d 1225 (Alaska 1992), the court adopted a three-part test for determining whether land is "unimproved" for purposes of granting immunity under what is now Alaska Stat. § 09.65.200, the general unimproved landowner immunity statute. The court in Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001), upheld a waiver obtained by an ATV rental operator, refusing to apply of § 05.45.121 of the Ski Safety Act to void it. ARIZONA Cases: In a case of first impression, the court in Phelps v. Firebird Raceway, Inc., 113 P.3d 1003 (Ariz. 2001), declared that Art. 18, Sect. 5 of the Arizona Constitution unambiguously provides that assumption of risk is a question of fact for the jury "in all cases whatsoever" and "at all times"; the case involved a contractual waiver by a race car driver. Miller v. Arnal Corp., 632 P.2d 987 (Ariz. Ct. App. 1981), the only Arizona ski rescue case on record, and one that exonerated a patrol for their failed but "reasonable" rescue attempts, remains good law. CALIFORNIA Cases: In Cheong v. Antablin, 946 P.2d 817 (Cal. 1997), the California Supreme Court held that "under the applicable common law principles, a skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another for simple negligence" (setting forth a gross negligence standard for skier/skier collisions; assumption of risk defense successful, rejecting plaintiff's argument that ordinance's enumeration of skier duties created an obligation higher than the common law). The Cheong court held that the ordinance did not provide a cause of action for skier/skier collisions on any basis, including negligence per se, as the ordinance in question was not enacted to protect the class of persons to whom plaintiff belonged (skiers), but was intended solely to protect operators. The court reaffirmed its unanimous opinions in Neighbarger v. Irwin Industries, Inc., 882 P.2d 347 (Cal. 1994) and Parons v. Crown Disposal Co., 936 P.2d 70 (Cal. 1997) that distinguished between instances of primary assumption of risk (where defendant has no duty to protect because a danger is inherent), and of secondary assumption of risk (where defendant has a duty and its breach causes injury to plaintiff). In Knight v. Jewett, 834 P.2d 696 (Cal. 1992), the leading case addressing assumption of risk defense, the court held that the only duty co-participants and site operators have is a duty "to use due care not to increase the risks . . . over and above those inherent in the sport" (the court concluded that assumption of risk survived legislative adoption of comparative negligence, in a ruling opposite to Vermont's Sunday case). Alternately, the Freeman test has been used in lesser courts to determine that a risk is not "inherent" if "the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport." Freeman v. Hale, 30 Cal. App. 4th 1388, 1394 (Cal. Ct. App. 1994). According to a federal court, whether a duty exists by virtue of such a duty being deemed outside the scope of risks inherent in the sport is resolved as a matter of law. Randall v. Mammoth Mountain Ski Area, 63 F.Supp.2d 1251 (E.D. Cal. 1999). Judicial determinations of inherent risk have varied. Freeman, above (increased collision risk due to alcohol consumption not inherent); Connelly v. Mammoth Mountain Ski Area, 39 Cal. App. 4th 8 (Cal. Ct. App. 1995) (skiing into lift tower an inherent risk); Campbell v. Derylo, 75 Cal. App. 4th 823 (Cal. Ct. App. 1999) (triable issue existed as to whether failure to use required snowboard retention strap increased risk beyond those inherent, where use would not chill participation). The California Supreme Court has upheld an express waiver as a complete defense. Knight, above. In O'Donoghue v. Bear Mountain Ski Resort, 30 Cal. App. 4th 188 (Cal. Ct. App. 1994), the court denied relief to a skier, experienced with the particular run, that mistook an unmarked ravine full of boulders for a catwalk and was injured; the court found primary assumption of an inherent risk for which ski area operator had no duty to mitigate, as well as skier's contractual waiver by virtue of lift ticket language. A release is generally held valid where a claim arises from negligent maintenance or adjustment of equipment by a rental operator, but other claims may survive. Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715 (Cal. Ct. App. 1993) (strict products liability action against manufacturer or distributor may still be available). In a case alleging both normal and gross negligence in operation of a lift, injuring a child participating in ski school, waiver signed by mother upheld. Platzer v. Mammoth Mountain Ski Area, 104 Cal. App. 4th 1253 (Cal. Ct. App. 2002), review denied. COLORADO Cases: Violation of a skier, ski area operator, or tramway operator duty established by statute constitutes negligence per se. Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998) (unconscious skier injured in fall from lift that had no passenger restraints). Doering ex. rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202 (10th Cir. 2001) found prejudicial error in instructing jury that a finding of inherent danger precluded recovery; an inquiry into operator's violation of Ski Safety Act should have been performed first, as such a breach is excluded from the definition of inherent danger. The Doering children were sledding when they collided with an inadequately marked sno-cat; the 2004 amendments would require the court to determine whether the sno-cat was actively engaging in grooming activities, for which the operator could be held negligent for failing to mark it properly, or merely in transit, where no such duty is now owed. In an unpublished case that distinguished Doering, the court in Gifford v. Vail Resorts, Inc., 37 Fed. Appx. 486 (10th Cir. 2002) noted that while the jury was instructed improperly as in Doering, such was not prejudicial because the operator's breach was bound up together with an inherent risk. Under the 2004 amendments, the breach alleged in Gifford, that of failure to mark a gully in which skier asphyxiated in deep snow as a "danger" would be nonexistent. Similarly, the conclusion of Graven v. Vail Associates, Inc., 909 P.2d 514 (Colo. 1995) that "not all dangers 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," is now in question. That case involved an unmarked, deep ravine adjacent to a ski slope. Not only does an operator no longer have a duty to mark such a "danger area," but the ravine is likely now an inherent danger, and operator liability protection extends beyond the slopes to the entire ski area. In skier/skier or skier/snowboarder collisions, ordinary duties of care apply. Ulissey v. Shvartsman, 61 F.3d 805 (10th Cir. 1995) determined that the duties created for all skiers and snowboarders under the Ski Safety Act established a presumption that the uphill skier has the last clear chance to avoid, and thus the primary duty to avoid collision; this case also established that amendments to the Act in 1990 explicitly abolished an inherent risk defense based on being hit by an out of control or unobservant skier. Reckless skiing causing severe injury or death may result in a criminal felony prosecution. People v. Hall, 999 P.2d 207 (Colo. 2000). As to lift accidents, the Colorado Supreme Court has held that the ski area and tramway operator owes the "highest degree of care commiserate with its practical application." Summit County Dev. Corp. v. Bagnoli, 441 P.2d 658 (Colo. 1968) (citing Lewis v. Buckskin Joe's, Inc., 396 P.2d 933 (Colo. 1964)). This doctrine of highest duty was reaffirmed in Bayer, above (holding that common law negligence claims against lift operator were not subrogated by tramway or ski safety Acts). In lift cases, proof that an operator complied with a safety statute is considered; however, it is only weighed against other factors, and is not, by itself, conclusive on the issue of due care or negligence. United Blood Serv. v. Quintana, 827 P.2d 509 (Colo. 1992). Once a rescue is initiated, ordinary care is required in the conduct of the rescue and the provision of care, notwithstanding how the skier first came to need care. See generally Spence v. Aspen Ski Co., 820 F.Supp. 542 (D. Colo. 1993) (jury instruction as to comparative negligence was improper absent proof of causation in case where skier's negligent maintenance of a hypoglycemic condition was raised as a defense to an IV poorly-administered by ski patrol). Operators owe skiers a duty of reasonable care, but not the highest degree of care, in protecting them from avalanches. Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64 (Colo. Ct. App. 1983) (upholding reasonable care instruction in case where out-of-bounds skier and friends were responsible for causing avalanche). Under the FTCA, whether to allow and maintain skier access to the national forests and whether to warn of avalanche dangers, are decisions subject to the discretionary function exception precluding suit. Marquez v. United States of America, 1996 WL 588918 (D. Colo. 1996) (skier killed by avalanche in Arapahoe National Forest after accessing it from adjacent ski area). CONNECTICUT Cases: As stated, risk of skier/skier collision is statutorily assumed by a skier . . . in an action against a ski area operator. Sklar v. Okemo Mt., 877 F.Supp. 85 (D. Conn. 1995). However, in 2004, the Connecticut Supreme Court responded to certified questions from the United States District Court, declaring that the skiers' assumption of risk statute is "inapplicable to negligence actions between skiers," and that the "appropriate level of care demanded of co-participants in the sport of skiing" is "reasonableness." Jagger v. Mohawk Mountain Ski Area, 849 A.2d 813 (Conn. 2004) (also holding that negligent operation of a ski area is actionable as to all services provided). In an unpublished 2002 opinion, Longley v. Whitewater Mountain Resorts of CT, Inc., 2002 WL 31894709 (Conn. Super. Ct.), the court declined to extend the statutory assumption of risk of § 29-212 to ski tubers; § 29-212 was amended in 2005 to definitively exclude ski tubing operations by ski areas from the statutory assumption scheme. Waivers or releases of liability granted to operators or rental equipment providers may be valid, but are construed strictly against the party released, and are generally disfavored when a waiver of defendant's negligence is sought. See Id.; see also Hyson v. White Mountain Resorts of Connecticut, Inc., 829 A.2d 827 (Conn. 2003) (release not effective to excuse operator negligence because word "negligence" was not in release). It has been observed as the "well- established" common law of Connecticut that a parent "cannot waive the rights of a child to recover from another for that other person's negligence." Ehrenrich v. Mohawk Mountain Ski Area, 2004 WL 3090681 (Conn. Super. Ct. 2004), citing Fedor v. Mauwehu Boys Scouts of America, 143 A.2d 466 (Conn. Super. Ct. 1958). IDAHO Cases: Idaho's ski safety statute immunizes operators from dangers "inherent" in the sport. Northcutt v. Sun Valley Co., 787 P.2d 1159 (Idaho 1990). Absent an obligation or right to fulfill the enumerated operator duties of § 6-1103, such a party is not a "ski area operator" entitled to statutory liability protections. Davis v. Sun Valley Ski Educ. Found., Inc., 941 P.2d 1301 (Idaho 1997) (non-profit skiing instruction foundation potentially liable for negligent training course design). The ski safety statute has eliminated the common law standard of care, per Long v. Bogus Basi Recreational Ass'n, Inc., 869 P.2d 230 (Idaho 1994). Ski area operators are held to the highest degree of care in the operation of lifts and tows. Hunt v. Sun Valley, Inc., 561 F.2d 744 (9th Cir. 1977). ILLINOIS Cases: The court declined to extend common law contact sport liability limitation to skiing, finding that skiers owe each other duty of reasonable care, and that skiing is not a contact sport, in Novak v, Virene, 586 N.E.2d 578 (Ill. App. Ct. 1991), cert denied. KENTUCKY MAINE Cases:Collision with unpadded snow-making hydrant located in ungroomed area was held to be an "inherent risk," not negligent operation. Green v. Sunday River Ski Corp., 81 F.Supp.2d 122 (D.Me. 1999). Neither waivers entered into with ski area operator, nor statutory assumption of inherent risks precluded skier/skier suit. Bresnahan v. Bowen, 263 F.Supp.2d 131, (D.Me. 2003). As opposed to tree placement which is considered an inherent risk arising from design, negligent operation or maintenance includes precarious snow blower placement without proper warning, and "failure to notify skiers of slope closure due to poor or dangerous trial conditions." Finnern v. Sunday River Ski Corp., 984 F.2d 530 (1st Cir. 1993). In interpreting the substantively-similar predecessor to Maine's current ski safety statute, the Supreme Judicial Court held that statutory assumption of inherent risk is treated as an affirmative defense, and that plaintiff does not have an initial burden of proving the non-existence of an inherent risk. Merrill v. Sugarloaf Mountain Corp., 745 A.2d 378 (Me. 2000). Neither parental waiver nor the current ski safety statute bar a minor's negligent supervision claim arising from ski school injury at ski area. Rice v. American Skiing Co., not reported in A.2d, 2000 WL 33677027 (Me. Super.) MASSACHUSETTS Cases: In Saldarini v. Wachusett Mountain Ski Area, 665 N.E.2d 79 (Mass. 1996), claim against ski area operator and arising from skier/skier collision on icy run was held barred by ski safety act (above). Bare spot declared an "unavoidable" and "inherent risk," barring recovery by injured skier. McHerron v. Jiminy Peak, 665 N.E.2d 26 (Mass. 1996). However, skier can recover when negligently struck and injured by ski patroller, despite skier/skier collision immunity. Tilley v. Brodie Mountain Ski Area, Inc., 591 N.E.2d 202 (Mass. 1992). Ski area operator negligence or ski safety statute violation does not release skier's claim from statutory scheme, including statute of limitations. Atkins v. Jiminy Peak, 514 N.E.2d 850 (Mass. 1987). MICHIGAN Cases: Michigan remains one of the most reactive states, barring practically all claims. More than one court has observed that the Legislature, in adopting the 1981 amendments, was "concerned with making the skier, rather than the ski area operator, bear the burden of damages from injuries." Kent v. Alpine Valley Ski Area, 613 N.W.2d 383 (Mich. Ct. App. 1999), citing Schmitz v. Cannonburg Skiing Corp., 428 N.W.2d 742 (Mich. Ct. App. 1988). The Act's immunization of operators has been applied to snowboarders. Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848 (6th Cir. 1999). Common law premises liability claims have been preempted by the Act. Anderson v. Pine Knob Ski Resort, Inc., 664 N.W.2d 756 (Mich. 2003). Section 408.344 notwithstanding (section holds operators responsible for loss or damage resulting from their violation of the Act), Michigan courts have held that violations do not automatically destroy their statutory immunity from suit. McGoldrick v. Holiday Amusements, Inc., 618 N.W.2d 98 (Mich. Ct. App. 2000); but see the unpublished opinion in Barrett v. Mt. Brighton, Inc., 2004 WL 1222996 (Mich. Ct. App.), presently pending leave to appeal to the Michigan Supreme Court (where an alpine skier was injured on a snowboarding rail in an area not marked as such in violation of the Act, and operator knew of alpine skiers in the area but failed to warn, operator not entitled to immunity under the Act). In a case involving an ice skater / ice skater collision caused by one skater skating backwards, the Michigan Supreme Court held that in the recreation context, co-participants merely owe one another a duty not to be reckless. Ritchie-Gamester v. Berkley, 597 N.W.2d 517 (Mich. 1999). MINNESOTA Cases: In a case recognizing a high level of immunity for a governmental operator, it was held that a sideward sloping hill leading off of a ski trail and into trees did not constitute an "artificial condition" for the purpose of applying the trespasser standard of care, reasoning that "even if the sloping hill was man-made it duplicated natural mountain environment of area." Martin v. Spirit Mountain Recreation Area Authority, 566 N.W.2d 719 (Minn. 1997). Encountering a parked ATV on a ski trail not an "obvious and inherent risk of skiing" for purposes of Minnesota's doctrine of primary assumption of risk. Verberkmoes v. Lutsen Mountains Corp., 844 F.Supp 1356 (D.Minn. 1994). A resort has no duty to protect against a skier/skier collision involving an intoxicated skier, absent actual or constructive notice of the danger. Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58 (Minn. Ct. App. 1989). Introduction of tow ticket with exculpatory language upheld for limited purpose of showing plaintiff's knowledge as an element of an assumption of risk defense. Larson v. Powder Ridge Ski Corp., 432 N.W.2d 774 (Minn. Ct. App. 1988). Skier/skier collision is a basis for action, and assumption of risk a jury issue "strictly on a comparative negligence basis," per Seidl v. Trollhaugen, Inc., 232 N.W.2d 236 (Minn. 1975). MISSOURI Cases: Bennett v. Hidden Valley Golf and Ski, Inc., 318 F.3d 868 (8th Cir. 2003) upheld a jury instruction directing them to find for the ski area operator if slope conditions causing injury were "inherent risks" of skiing at time of injury. The court in Lewis v. Snow Creek, Inc., 6 S.W.3d 38 (Mo. Ct. App. 1999) rejected a form waiver as an express assumption of risk based on the circumstances surrounding its execution (in equipment rental line), and identifying as a question of fact precluding summary judgment whether ice conditions on ski run were an "inherent risk." MONTANA Cases: In upholding the Act as amended in 1989 against a repeat of a 1988 challenge to its constitutionality (based on overbreadth), the court in Mead v. M.S.B., Inc., 872 P.2d 782 (Mon. 1994) held that the list of operators' duties in § 23-2-733 is not exhaustive. This case also held that: 1) the question of whether a particular risk is "inherent" properly belongs with the jury, and 2) that operators remain subject to the state's general due care statute, Mon. Code Ann. § 27-1- 701. The National Park Service was held not liable for the death of a child hiker killed on a trail not maintained in Winter at Yellowstone National Park, under the discretionary function exception to the Federal Tort Claims Act. Childers v. U.S., 40 F.3d 973 (9th Cir. 1995), cert denied. But consider the case of a snowboarder who suffered catastrophic brain injury allegedly caused by the Forest Service's failure to warn of a potentially dangerous condition on a groomed snowmobile trail: Oberson v. U.S., 311 F.Supp.2d 917 (D. Mont. 2004) (Forest Service held liable). Like many other states, Montana has a recreational use statute (§ 70-16-302) that grants immunity to private landowners who open their property to the public for permissive, non- commercial recreational activity; a ski area successfully used the statute to fend off a wrongful death suit brought by the parents of a minor killed during after-hours sledding. Saari v. Winter Sports, Inc., 64 P.3d 1038 (Mont. 2003). NEVADA Cases: In a case involving a Nevada resident's injury on a ski lift at a California ski resort, the Nevada Supreme Court declined to find personal jurisdiction under Nevada's long arm statute. Despite the resort's promotional activity in Nevada, the court felt the activity lacked a sufficient nexus with the alleged negligence. Munley v. Second Judicial Dist. Court of State, County of Washoe, 761 P.2d 414 (Nev. 1988). NEW HAMPSHIRE Cases: Adie v. Temple Mountain Ski Area, Inc., 238 A.2d 738 (N.H. 1968), holding that risk of injury is on the skier, except in cases of negligent instruction; accord, Beringer v. Meadow Green-Wildcat Corp., 945 F.2d 4 (1st Cir. 1991), which held that ski areas not liable to skiers for injuries resulting from the inherent risks of skiing. However, rules and regulations promulgated by the Department of Safety pertaining to tramway safety do not eliminate common law claims arising from negligent maintenance and construction of tramways. Ford v. Black Mountain Tramways, Inc., 259 A.2d 129 (N.H. 1968). If a ski area customarily charges for spectator access, non-paying spectators' claims are properly subject to the ski safety act, not the general recreational use statute. Soraghan v. Mt. Cranmore Ski Resort, Inc., 881 A.2d 693 (N.H. 2005). NEW JERSEY Cases: Murray v. Great Gorge Resort, Inc., 823 A.2d 101 (N.J. Super. Ct. Law Div. 2003) held that by virtue of express duties to post notice of daily ski conditions and other warnings, operators have an implied duty under the Ski Statute to inspect runs. Verdict for plaintiffs in tobogganing accident applying the New Jersey Ski Statute and comparative negligence, in Brett v. Great American Recreation, Inc., 677 A.2d 705 (N.J. 1996). In this well-written opinion, the court succinctly distinguishes between the pure assumption of risk regimes of some states, compared to the view that certain hazards, manmade and natural, can, in exercise of due care, be reduced or eliminated. Brett and five others slid down a slope at night, lost control, and went off an embankment into a utility pole; although they were there without permission, tobogganing and sledding at night on the hill was a common practice known to the defendants. Under the statute, operators have a duty to remove or lessen obvious, manmade hazards; a breach of any statutory duty is negligence per se. Under Pietruska v. Craigmeur Ski Area, 614 A.2d 639 (N.J. Super Ct. Law Dev. 1992), "any claim alleging the negligent maintenance, construction or operation of a chairlift removes that cause of action from the reach of [the Ski Statute]." Regarding minors, the court in Goss v. Allen, 360 A.2d 388 (N.J. 1976) took notice of the fact that skiing is a recreational activity enjoyed by persons of all ages, determining that skiing is not so inherently hazardous as to warrant the automatic application of an adult standard of care (standard of care to be determined on case by case basis; 17 year old novice only held to duty of a minor). NEW MEXICO Cases: In Kidd v. Taos Ski Valley, 88 F.3d 848 (10th Cir. 1996), Kidd was injured when she failed to see a diversionary, single strand bumblebee rope, and skied out of bounds; facing defense evidence indicating rope's position since 1978 without skier incident, plaintiff failed to timely designate experts, and the court found that she failed to create a triable issue of fact as to whether the ski area breached its duty to "warn of or correct particular hazards or dangers known to the operator where feasible to do so." In cases that involve both skier and operator breach, comparative negligence applies, per Lopez v. Ski Apache Resort, 836 P.2d 648 (N.M. Ct. App. 1992), cert denied. However, in a later action, a court determined that the district court lacks jurisdiction over the Apache Tribe of the Mescalero Reservation for injuries at the ski area, and that the Tribe has not waived their sovereign immunity by engaging in commerce. DeFeo v. Ski Apache Resort, 904 P.2d 1065 (N.M. Ct. App. 1995), cert denied. A question of fact existed as to whether unloading guest was a passenger or skier for purposes of Ski Safety Act application in a case alleging negligent lift. Wood v. Angel Fire Ski Corp., 774 P.2d 447 (N.M. Ct. App. 1989). NEW YORK Cases: A 14-year old skied out of bounds and caught his ski on a concealed cable on defendant's mountain. His injuries included multiple fractures, weeks of traction, and months of pain. A jury award of pain and suffering that included only $18,000 for past and nothing for future pain and suffering, was set aside. The court concluded, in part, that the jury award materially deviated from reasonable compensation. Singh v. Catamount Development Corp., 801 N.Y.S. 2d 290 (N.Y. App. Div. 2005). As shown, New York courts are relatively receptive of ski injury claims, often conducting a thorough, traditional duty and standard of care analysis. However, in an unpublished opinion, Conery v. Snow Time, Inc., 2004 WL 2347212 (N.Y. Sup.), the court granted summary judgment to defendant. The plaintiff had alleged that the large wood shard on which he had been impaled was not a "natural" condition but resulted from incomplete trail expansion; the court responded that even were the shard the result of an incomplete cleanup, such was incidental to ski area maintenance, and thus an inherent risk assumed by the adult plaintiff, an experienced skier. This case encourages contrast with Basilone v. Burch Hill Operations, Inc., 605 N.Y.S. 2d 423 (Sup. Ct. App. Div. 1993). There, 15-year-old skier Dana Basilone struck a split rail fence, and her mother argued that Burch Hill should have padded it. Defendant moved for summary judgment stating there was no duty to pad poles or fences off skiable terrain, away from slopes or trails. In concluding that a triable issue of the post's location on or off a trail, the court impliedly suggests that were the post found to have been on a skiable trail, then an argument could be made that defendant should have padded it. "On the record before us, we cannot conclude as a matter of law that the infant, an inexperienced skier, assumed the risk related to this type of man-made obstacle located within the confines of the ski trail." Id. at 424 [emphasis added]. See also De Lacy v. Catamount Development Corp., 755 N.Y.S.2d 484 (N.Y. App. Div. 2003) (denial of summary judgment affirmed, as genuine issue of material fact with respect to whether 7-year-old was aware of, appreciated, and voluntarily assumed inherent risks of skiing, including falling from lift). This correlation by the courts between an individual skier's own experience and comprehension of possible risks, and the level of risk actually assumed, led to the dismissal of a complaint brought by a skier injured from contact with a "submerged ice divot." Painter v. Peek'n Peak Recreation, Inc., 769 N.Y.S.2d 678 (N.Y. App. Div. 2004). The court concluded that Painter, a skier with 60 years of experience, had assumed the particular risk of collision with the divot. Id. The risk of injury by another skier has been declared an inherent risk of downhill skiing; however, the risk actually assumed by the plaintiff is measured based on the background and experience of the plaintiff. Lamprecht v. Rhinehardt, 778 N.Y.S.2d 310 (N.Y.App. Div. 2004). See also Zielinski v. Farace, 737 N.Y.S.2d 199 (N.Y. App. Div. 2002). However, New York trial courts have questioned whether another's negligence is in fact an inherent risk, and whether proof of reckless conduct is required to survive summary disposition of a claim. See discussion of this emerging conflict in Martin v. Fiutko, 2005 WL 742368 (N.Y. Sup.). At Hunter Mountain there is an expert trail named Eisenhower Drive. An intermediate skier inadvertently found himself on Eisenhower, having intended to take a less difficult trail. He encountered a small drop off, a patch of ice, and then a tree, the impact of which rendered him paraplegic. In attempting to avoid an assumption of inherent risk defense, plaintiff alleged that the owner's signage and warnings were inadequate, and that he would not have been on the trail in the first place if properly warned. The court determined that even were plaintiff's argument proved, which it was not, such a failure could not be considered a proximate cause of plaintiff's injury. Lapinski v. Hunter Mountain Ski Bowl, Inc., 760 N.Y.S.2d 549 (N.Y. App. Div. 2003). Eisenhower Drive was the setting of an earlier federal case that was allowed to proceed to the jury on whether trail conditions themselves created a reasonable or unreasonable risk of harm for plaintiff, who fractured both legs on encountering a manmade berm. Younger v. Hunter Mountain Ski Bowl, Inc., 1995 WL 170269 (N.D.N.Y. 1995). NORTH CAROLINA Cases: The court in Strawbridge v. Sugar Mountain Resort, Inc., 320 F.Supp.2d 425 (W.D.N.C. 2004) refused to enforce an exculpatory clause contained on an injured skier's lift ticket that was claimed to have contracted away the operator's negligence; Strawbridge was injured when he encountered a bare spot that operator had failed to mark, in violation of a statutory duty. In deciding motions to dismiss, the court a month later declared that in North Carolina, the doctrine of assumption of risk is based upon actual knowledge or a fair and reasonable opportunity to know, and usually this knowledge and opportunity must come in time to be of use. Strawbridge v. Sugar Mountain Resort, Inc., 328 F.Supp.2d 610 (W.D.N.C. 2004). The Strawbridge decisions may be factually distinguishable from other potential failure to warn cases, as the court observed only five years earlier in an unpublished case that: "if the law were to be read to require the posting of signs before every grassy spot on a ski slope, Sugar Mountain would more resemble a giant slalom course than a recreational ski resort." Poole v. Sugar Mountain Resort, Inc., 1999 WL 33321102 (W.D.N.C.). NORTH DAKOTA
Cases: The statutory bar on skier recovery resulting from an inherent risk in skiing is not in conflict with the state's modified comparative fault statute (§ 32-03.2-02), nor are the enumerated operator duties an exhaustive list of duties owed, per Bouchard v. Johnson, 555 N.W.2d 81 (N.D. 1996). Bouchard also held that a ski operator can not be held liable if the design of the ski run creates natural conditions necessary for the enjoyment of the sport, and the design is so obviously dangerous that skier must be found to have assumed the risk. Olson v. Bismarck Parks and Recreation Dist., 642 N.W.2d 864 (N.D. 2002) (recreation use statute successfully used by non-charging golf course to fend off suit by sledders). OHIO Cases: Risk of injury presented by fence at ski resort was an inherent risk, and was assumed by snowboarder pursuant to skiing safety statute, so that snowboarder could not recover against operator of resort for injuries sustained by snowboarder when he struck fence after encountering ice on slope and falling. Stone v. Alpine Valley Ski Area, 734 N.E.2d 888 (Ohio Ct. App. 1999). Statutory immunity does not apply when willful and wanton misconduct is alleged in the rental of ski equipment, per Otterbacher v. Brandywine Ski Center, Inc., 1990 WL 72327 (Ohio Ct. App.). OREGON Cases: Operators are not immunized for their own negligence. Pierce v. Mt. Hood Meadows Oregon, Ltd., 847 P.2d 909 (Or. Ct. App. 1993), reviewed denied (involving negligent instruction claim and rejecting waiver as ambiguous that did not expressly refer to ski school activities). Operators remain liable for their employees' negligence, even if that negligence takes place in the form of skiing. Nolan v. Mt. Bachelor, Inc., 856 P.2d 305 Or. (Ct. App. 1993) (operator remains potentially liable for skier/skier collision where negligent skier was a ski instructor employed by the resort). While injuries sustained solely from an inherent risk work as a bar to recovery, if injury is caused by combination of inherent risk and operator negligence, comparative fault applies. Jessup v. Mt. Bachelor, Inc., 792 P.2d 1232 (Or. Ct. App. 1990), review denied (plaintiff injured when she ran into crowd of skiers at ski lift off-ramp). In Steele v. Mt. Hood Meadows Oregon, Ltd., 974 P.2d 794 (Or. Ct. App. 1999), review denied, the court allowed a suit in negligence to proceed, holding that a ski ticket that recited the inherent risk statute that allows claims in negligence, could be understood by skier to release claims for inherent risks only, not negligence, and did not bar plaintiff's claim. In Stiles v. Freemotion, Inc., 59 P.3d 548 (Or. Ct. App. 2003), review denied, the court reversed a lower court ruling that allowed jury instructions crafted from the Skiing Activities law in a case brought against a snowboard manufacturer and dealer, saying that the Act applied only to defendants who were ski area operators. PENNSYLVANIA Cases: In a case of first impression, the Superior Court declared that the risk of being struck from behind by high school student snowboarding under the influence of alcohol was not a risk "inherent" to downhill skiing, and allowed plaintiff to recover. Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa. Super. 2005). In reaching its decision, the Crews court determined that for purposes of the Skier's Responsibility Act and a waiver of liability, the court is to determine what is an "inherent risk" as a matter of law. The court discussed the limitations of the so-called "no duty" rule an interpretation of voluntary assumption of risk doctrine recognized by the court as applying to "amusement facilities which have not deviated in some relevant respect from established custom." The court recognized that the rule does not abrogate the duty of such a facility to protect patrons from "forseeably dangerous conditions not inherent in the activity." Id. at 103, citing Jones v. Three Rivers Management Corp., 394 A.2d 546, 551 (Pa. 1978) [emphasis added]. The Crews court found in favor of the plaintiff, concluding that the resort had knowledge of underage drinker/skiers, and failed to take any action to reduce the risk to its patrons. Interesting, then, is the extension of the "no duty" rule to an inherent risk analysis in a case where the skier sued a colliding snowboarder directly. See Cruz v. Gloss, Memorandum Disposition No. 2944 EDA 2003, entered October 25, 2005 (Pa. Super.). Relying in part on Crews, the Superior Court found error in the Court of Common Pleas' decision to submit the question of inherent risk to the jury, rather than making that determination as a matter of law. The Superior Court, however, found harmless error in that the collision was, as a matter of law, an inherent risk that plaintiff assumed, and that this determination should have been made at the time of defendant's motion for summary judgment, precluding plaintiff from recovery and determining the case. In interpreting the doctrine of voluntary assumption of an inherent risk, the court referenced four variations acknowledged in the Restatement of Torts, and applied the "no duty" rule, as applied to an amusement facility (particularly, a ski resort) in Crews. Plaintiff's arguments regarding defendant's negligence and recklessness, and that the legislature intended assumption of risk doctrine to benefit only ski area operators were rejected. (This argument is supported by the statement of purpose in the 1979 Act, as it was introduced.) The court interpreted the short but broadly-worded language of the Skier's Responsibility Act as adopted by the legislature to command application of the "no duty" rule in any claim arising from plaintiff's participation in "downhill skiing" where injury is caused by a court- determined "inherent risk." For further discussion of these issues, together with an attempt to define the "inherent risks" of skiing, see Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000) (cited heavily in Cruz); see also Bullman v. Giuntoli, 761 A.2d 566 at 573 (Pa. Super. 2000) (dicta suggesting that the inherent risks of skiing do not include that which happens suddenly or without warning, nor the affirmative negligence of another.) Some of these issues may ultimately be resolved by Pennsylvania's Supreme Court, as appeals are presently contemplated in both the Crews and Cruz cases. RHODE ISLAND Cases: Salk v. Alpine Ski Shop, 342 A.2d 622 (1975). Skier broke leg when bindings did not release. Skier sued manufacturer and retailer in negligence. In finding that plaintiff had not met her burden of proof, the court observed that "the mere happening of an accident does not ordinarily justify the inference that the defendant was negligent and that his negligence proximately caused the injury to plaintiff." Id. at 625. SOUTH DAKOTA Cases: An 11-year-old was injured when struck by an expert skier at the intersection of a trail. Guardian ad litem brought suit alleging negligent design and operation by ski area. Jury was instructed on common law negligence, as well as on a county ordinance prohibiting suit arising from the inherent risks of skiing. In settling an indirect challenge to the validity of the local ordinance, the court held the jury instructions improper on multiple grounds, including that the local ordinance: 1) barred a claim available under preemptive state law, and 2) improperly shifted burden of proof on assumption of risk defense defendant to plaintiff. Rantapaa v. Black Hills Chair Lift Co., 633 N.W.2d 196 (S.D. 2001). TENNESSEE Cases: In an unreported case involving a rented, poorly-adjusted binding failing to release and causing injury, the Court of Appeals rejected the suggestion that the legislature intended the ski safety act to grant operators blanket liability covering their own negligence. Terry v. Ober Gatlinburg, Inc., 1998 WL 54700 (Tenn. Ct. App. 1998). The court determined that operators still had potential liability for negligent rental operations. In a surprising bit of reasoning, the court determined that the Act was inapplicable in the case; although the skier fell on the slopes, the alleged negligence (poor adjustment of rental binding) occurred earlier, before the skier was "engaged in the sport of downhill skiing." TEXAS UTAH Cases: A skier injured when a fellow skier lost control and fell into him, causing both to slide into a tree, brought suit. Judgment notwithstanding the verdict was entered in defendant's favor, and affirmed. Court found that absent defendant skier's negligence, he was not liable merely because there had been a skier/skier collision. While skiers have duty to behave reasonably and remain in control, an inadvertent fall does not breach this duty. Ricci v. Schoultz., 963 P.2d 784 (Utah Ct. App. 1998). In Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), the court declared that the legislative intent in passing the state's inherent risk-based statute was to preserve the common law defenses available to ski resort operators, such that the courts would not extend comparative negligence to ski cases. Clover was struck by resort employee who ignored danger of a blind jump of which resort was aware and warned skiers to avoid. The court held that determination of what "inherent risks" are determined as a matter of law on a case by case basis. However, the court held that the statute did not foreclose claims of negligent design and maintenance against operators, even if an injury involves a defined "inherent risk." To the extent that bare spots, forest growth, rocks, and structures are not risks that skiers wish to confront, they are not "inherent" in the sport of skiing. Operators must eliminate those risks that can be removed by reasonable care, or warn patrons of them; the ones that cannot be eliminated are "inherent risks" from which operator is exculpated from liability. White v. Deseelhorst, 879 P.2d 1371 (Utah 1994) (skier paralyzed after encountering an unmapped "cat track"). Even where an operator had posted trail boards in compliance with statute, the court allowed a skier's claim to proceed on a theory of negligent instruction; the court held that an operator owed a higher duty to its ski students, including the duty of its ski instructors to explicitly warn of "crud" snow that exists in the Spring in Utah. Ghionis v. Deer Valley Resort Co., Ltd., 839 F.Supp. 789 (D.Utah 1993) (also stating that a release signed by Ghionis was ambiguous, and thus not a bar to recovery). VERMONT Cases: Exculpatory agreements obtained as part of lift tickets or as a condition of participation have been held void as against public policy; the public policy is that which "underlies the law of premises liability." Dalury v. S-K-I Ltd., 670 A.2d 795 (Vt. 1995); see also Spencer v. Killington, Ltd., 702 A.2d 35 (Vt. 1997). In Frant v. Haystack Group, Inc., 641 A.2d 765 (Vt. 1994), the Vermont Supreme Court found that a 4" X 4" fence post supporting a rope lift maze was not a danger inherent in the sport, and that a jury should have been permitted to hear evidence of safer alternatives, such as "forgiving" plastic or padding that might have reduced the hazard. An employee handbook provision and written policy notwithstanding, a ski area was found to have no duty to identify skier who collied with plaintiff in O'Connell v. Killington, Ltd., 665 A.2d 39 (Vt. 1933). Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786 (D.Vt. 1951), the most widely cited case in support of the inherent danger rule, nevertheless stated, in dicta, that the ski area operator could be held liable if there was evidence of dangers existing on the trail which reasonable prudence would have foreseen and corrected. One particular Vermont case is widely accredited for the reactionary wave of ski safety statutes that began in the late 1970s. Like many other states, Vermont had adopted comparative negligence by statute. In a case called Sunday v. Stratton Corp., 390 A.2d 398 (Vt. 1978), the court ruled that the common law doctrine of assumption of risk was inappropriate in a comparative negligence case involving a downhill skiing injury. On facts nearly identical to those in Wright, the Vermont Supreme Court also held that not every risk or fall was necessarily inherent in the sport. As indicated above, the Vermont legislature, along with many other states, sought to revive and preserve the doctrine by statute. One case epitomizes the assumption of risk panic, Dillworth v. Gambardella, 970 F.2d 1113 (2d Cir. 1992) (applying the doctrine to deny recovery in a skier/skier collision). This holding stands in contrast to the opinion in Pitasi v. Stratton Corp., 968 F.2d 1558 (2d Cir. 1992), finding that the jury was not barred from finding resort liable for negligent failure to warn. However, an even more recent unpublished opinion with the same defendant found that the burden of proving whether the inherent danger statute applied rested on plaintiff. Mahdessian v. Stratton Corp., 2000 WL 302781 (2d Cir. 2000) (statute absolved defendant of liability in the case, even though danger arose from man-made obstacle). VIRGINIA Cases: Grigg v. Wintergreen Partners, Inc., Case # CL03-9452 (Va. Cir. Albermarle Cty.), Jury Verdict July 16, 2004. Jessica Grigg, 17, came over a crest, fell, and struck a large groomer driven directly up her open run and advanced only by a snowmobile. Grigg sustained significant orthopedic injuries as well as a skull fracture that resulted in permanent brain injury with extensive loss of function. The ski area operator specifically approved the policy of moving groomers onto open slopes with an escorting snow mobile but prohibiting actual grooming on open ski slopes. The jury awarded $8.3 million the largest verdict ever obtained in a ski case in the United States. The Supreme Court of Virginia dismissed the Defendant's Petition of Appeal on July 7, 2005. James H. Chalat of Chalat Hatten Law Offices, P.C. served as Plaintiff's counsel in the case. In deciding Hoar v. Great Eastern Resort Management, Inc., 506 S.E.2d 777 (Va. 1998), the Virginia Supreme Court reinstated a $6M jury verdict in favor of the guardian of a 41 year old firefighter who suffered disabling brain damage in a skiing incident at defendant's resort. In reversing the prior appeals court decision, the court held that questions for the jury included: 1) whether unmarked ski slope drop off was clearly visible, and 2) whether skier assumed the risk of injury. WASHINGTON Cases: In a case where a skier was injured from colliding into a fixed metal fence post embedded in concrete, the court held that no provision in the ski statute per se immunized defending resort from liability for skier collisions with resort-placed equipment. Brown v. Stevens Pass, Inc., 984 P.2d 448 (Wash. Ct. App. 1999) (also largely upholding the status quo of common law negligence as it pertains to ski law). A skier's claim arising from his collision with manmade obstacles set up by resort owner for a snowboarding competition later in the day was dismissed pursuant to a comprehensive waiver, unread, but nonetheless signed, to receive a discounted lift ticket Chauvlier v. Booth Creek Ski Holdings, Inc., 35 P.3d 383 (Wash. Ct. App. 2001). An exculpatory clause executed by parents on behalf of a child in a racing program was found void as against public policy and did not bar child's cause of action. The court further held that doctrine of primary implied assumption of risk continued as a complete bar to recovery after adoption of comparative negligence laws (contrary to the holding in Vermont's Sunday case), but need not always be applied as a complete bar. Scott v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992). WEST VIRGINIA Cases: Hardin v. Ski Venture, Inc., 50 F.3d 1291 (4th Cir. 1995). At Snowshoe Ski Resort, Hardin skied through a plume of wet manufactured snow being sprayed by a shoemaking gun pointed uphill. Hardin's goggles became iced, and he hit a tree, sustaining injuries that left him quadriplegic. At the trial level, Hardin alleged operator negligence in directing the gun uphill, in producing snow so wet that his goggles became iced, and failure to allow a good flow of skiers around the shoemaking gun all in violation of the operator's own policy guidelines. The trial court denied the operator summary judgment, determining that the alleged negligence created a question of fact for the jury as to whether operator fulfilled a duty under the Skiing Responsibility Act to maintain the area in a "reasonably safe condition," and a jury later returned a verdict for defendant. Hardin v. Ski Venture, Inc., 848 F.Supp 58 (N.D.W.Va. 1994). Hardin appealed, claiming that his fact-specific jury instructions were improperly excluded. The appellate court disagreed, affirming the verdict. In Pinson v. Canaan Valley Resorts, 473 S.E.2d 151 (W.Va. 1996), the Supreme Court of Appeals of Vermont distinguished the Hardin case in granting the defendant operator summary judgment on the basis of the Act. Pinson alleged injury due to an ungroomed slope. As a matter of law, the court found no breach of maintenance duty that would allow plaintiff's claims to proceed. The court noted that it had been "snowing steadily" all day up until Ms. Pinton's injury, and that Pinson had not alleged any particular breach of statutory duty or negligence, such as the shoemaking gun operation in Hardin, that created a triable issue of fact. The court held that while the legislature did not intend to grant operators immunity for their intentional torts or negligence, they were immunized from the "inherent risks" of skiing, including risks associated with surface or subsurface snow and ice, which are "essentially impossible to eliminate," even with reasonable maintenance; the burden of going forward rested on plaintiff. WISCONSIN Cases: In Ansani v. Cascade Mountain, Inc., 588 N.W.2d 321 (Wis. Ct. App. 1998), review denied, a skier sued operator for injuries sustained when he fell and slid into timing box on coin- operated race course. The court held that the recreational activity statute, § 895.525 does not mandate that all who are injured while skiing are negligent under all circumstances as a matter of law; rather, skiers have a duty to exercise ordinary care in avoiding forseeable harms, including adherence to the enumerated conditions of § 895.525(4). Challenges to waivers of operator liability have yielded mixed results. See Yauger v. Skiing Enterprises, Inc., 557 N.W.2d 60 (Wis. 1996) and Osborn v. Cascade Mountain Inc., 2002 WL 31478724 (Wis. Ct. App.). In Yauger, a child was killed while skiing after colliding with the concrete base of a lift tower. The child's father had purchased a family season pass, the application for which had included an exculpatory clause. The Court of Appeals upheld the clause, determining that the discount received was adequate consideration for the release, and that the clause expressly contained the term "negligence." The Wisconsin Supreme Court, however, reversed, holding that the exculpatory clause did not explicitly waive operator's own negligence, was not conspicuous, and was, therefore, void as against public policy. WYOMING Under Wyoming's "Recreation Safety Act," Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123, providers of "sport and recreational opportunities," including skiing and snowmobiling, have no duty to eliminate, alter, or control the "inherent risks" of a particular opportunity, but are responsible for their negligence. Participants assume all "inherent risks," defined as "those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational activity." Skiing in closed or non-designated areas, skiing while intoxicated, leaving the scene of a skiing accident, or skiing with "reckless disregard" for safety are punished as misdemeanors (including jail time in all but the first situation). Wyo. Stat. Ann. §§ 6-9-201, 6-9-301. Cases: The leading case addressing the question of who determines inherent risks under the Act is Halpern v. Wheeldon, 890 P.2d 562 (Wyo. 1995); this case, involving a guest who was thrown from a horse at a dude ranch, noted that, unlike other states, Wyoming did not provide a statutory list of assumed risks. While a participant assumes "inherent risks" as a matter of law, when a genuine issue of material fact exists as to what those particular risks were, such an issue belongs before the jury. Where a skier sustained permanent injury after falling 12 feet into a snowboard half-pipe, the court determined that questions of fact remained for the jury regarding what risks Dunbar had personally assumed. Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145 (10th Cir. 2004). Dunbar came upon a specially-designed "terrain park" with expert features, while she was skiing at her level of expertise on an intermediate run. She asked resort staff to direct her away from the features, as she did not want to participate at that level. While moving along a catwalk and ramp as directed by resort staff, Dunbar fell into the half-pipe feature. The court's decision suggests a sliding-scale approach to inherent risk analysis under the Act, based not on skiing as a whole, but the particular factual setting of each case, and the choices made by the plaintiff. In a case upholding the general validity of waivers, the court in Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1998) affirmed summary judgment in favor of a resort. Plaintiffs were the widow and son of a certified ski instructor who was found unconscious on a course during an "ironman decathlon," for which he had signed a release to be allowed to participate. The event was to include various activities, the first among them being downhill skiing. Organizers had run the course a few times and marked a few hard, icy spots with skis, but no hay bales, speed nets, gates, or other measures were taken. No one was required to wear a helmet. Although a few other participants had lost control at the same location where decedent was believed to have lost control and hit a tree, the court found no willful or wanton disregard for participant safety by the resort from which to justify setting aside the releases. Return to Ski Law Overview |
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