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October 2019

A Lawyer's Guide to Skiing in the American West

Headed out to the Rockies or the Sierras for bit of skiing this winter?  Here is a lawyer’s guide to liability for skiing injuries in the American West.

CALIFORNIA
Injured Skier in Toboggan Assumes Risk of Hitting a Tree on Way Down Mountain
[1]

In 2009, Teresa Martine was skiing at Heavenly Mountain Resort in California, felt knee pain and ended up in a ski patrol toboggan.  On the way down, the ski patroller lost control of the toboggan, which crashed into a tree, causing Martine injury.  Martine then sued Heavenly.  The California Court of Appeal found the possibility that a skier “might injure themselves while skiing and need assistance descending down the mountain is one of the foreseeable risks of the sport of skiing”.  As such, the court held that one of the inherent risks of skiing is suffering an injury while being transported in a toboggan, and found in favor of Heavenly Mountain Resort. 

COLORADO
Out-of-Control Skier To Be Tried for Reckless Manslaughter[2]

In 1997, Nathan Hall, while skiing at Vail, collided with Allen Cobb, causing Cobb to suffer traumatic brain injuries, from which he later died. The Court found that Hall, a ski lift operator at Vail, after his shift ended, skied "straight down a steep and bumpy slope, back on his skis, arms out to his sides, off-balance, being thrown from mogul to mogul, out of control for a considerable distance and period of time, and at such a high speed that the force of the impact between his ski and [Cobb]’s head fractured the thickest part of the victim’s skull----created a substantial and unjustifiable risk of death to another person." Based upon same, the Supreme Court of Colorado held that Hall must stand trial for the crime of reckless manslaughter, as Cobb died as a result of the injuries suffered during the crash.

IDAHO
Resort Has No Duty to Identify Skier Involved in Collision[3]

Christopher Northcott was skiing on Bald Mountain in Idaho in the 1980s, when another skier collided with him, sending Northcott into a signpost, causing him severe injury.  The other skier was detained by witnesses, but subsequently allowed to leave by a member of the ski patrol, even though the skier never identified himself.  Northcott then sued the resort for: (1) his injuries from hitting the signpost and (2) their failure to determine the identity of the other skier.  The Supreme Court of Idaho, in applying the Responsibilities and Liabilities of Skiers and Ski Area Operators (the “Act”) (Idaho Code §§ 6-1101 through 6-1109), found for Bald Mountain.  Specifically, the Court held under the Act:

  1. A ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign.
  2. A ski area operator does not have the duty to provide a ski patrol that will determine the identity of a skier who was involved in a ski accident with another skier.

MONTANA
Skier Responsible for their own Irresponsibility
[4]

In 1990, Zachary Mead injured his knee while skiing the Bowl Outrun at Snowbowl, and sued the resort.  Under Montana Skier’s Responsibility Act (the “Act”) (MCA § 23-2-731 et seq.), a skier is required to accept all legal responsibility from the risks inherent in the sport of skiing.  Upon finding that Mead “chose to ski around a blind curve several feet up the side of a steep bank, knowing that there were a significant number of bare spots and protruding rocks and forest growth on the bank”, the Fourth Judicial District Court of Montana found Mead to be “irresponsible” and granted judgment for Snowbowl under the Act.

OREGON
Multiple Accidents on Bomb-Drop Provide Basis for Skier to Claim Gross Negligence[5]

In 2015, Philip Emerson, while skiing at Mt. Bachelor in Oregon, suffered multiple injuries on a feature known as the “bomb drop” and sued the resort for gross negligence.  Based on the resorts knowledge that three prior injuries on the bomb drop occurred in the six weeks previous to Emerson’s injury, the Court of Appeals of Oregon found a reasonable jury could find Mt. Bachelor was indifferent to the probable consequences of its actions, e.g. further injured skiers, and reversed the lower’s courts entry of judgment in favor of the resort.  The Court of Appeals also found the waiver on the ticket to be unconscionable and unenforceable.

NEW MEXICO
Skier on Indian Reservation Subject to Exclusive Jurisdiction of Tribal Courts[6]

In 1992, Troy DeFeo injured himself when exiting a ski lift at Ski Apache Resort in New Mexico, owned by The Mescalero Reservation (the “Tribe”).  DeFeo then sued the Tribe in New Mexico state court.  The Court of Appeal for New Mexico held Indian tribes are immune from lawsuits in state courts, absent an unequivocal waiver of immunity by the tribe.  Instead, the Court found the Mescalero Apache Tribal Courts had exclusive jurisdiction over DeFoe’s claims, and ordered the matter dismissed.

UTAH
Inadvertent Fall of Skier Without More Not Enough to Impose Liability in Crash[7]

In 1994, Garry Ricci and Charles Schoultz were skiing down an easy run at Snowboard Ski Resort in Salt Lake County, Utah.  Schoultz was taking a ski lesson and was making a series of controlled turns.  Ricci was following close behind at the same speed.  Schoultz then unexpectedly fell over, Ricci collided with Schoultz, and the pair slid into a tree well, with Ricci suffering serious injuries.  Ricci then sued Schoultz.  The Court of Appeal of Utah ruled against Ricci, finding while “a skier does have a duty to other skiers to ski reasonably and within control . . . an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty.”

WASHINGTON
Mountain Not Responsible for Snowboarder Injuries Off-Trail[8]

In the 1990s, Kevin Campbell was snowboarding at Stevens Pass ski area when he went into an area not designated as a run, flew off a 50’ cliff and hit a tree, breaking his leg.  He then sued, but his case was dismissed pursuant to Revised Code of Washington 70.117.020(7) [recodified as Rev. Code Wash § 79A.45.030], entitled ‘Skiing and Commercial Ski Activity’, which states “[a]ny person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.”

WYOMING
Rental Shop Release Bars Skier’s Claims For Crashing Into Trail Sign[9]         

In 2013, Lindy Cunningham rented ski equipment from Jackson Hole Mountain Resort in Wyoming and signed a rental agreement, which released Jackson Hole from all claims arising from her “use of the facilities, ski area or ski lifts”.  The next day, while skiing, Cunningham fell off the side of a trail and crashed into a trail sign rendering her a quadriplegic.  Cunningham then sued Jackson Hole.  On appeal, the United States Court of Appeal for the Tenth Circuit held “specific agreements absolving participants and proprietors from negligence liability during hazardous recreational activities are enforceable, subject to willful misconduct limitations.”  Finding no willful misconduct, as the trail sign had been in the same spot for over 30 years, and no one else had hit it, the Court held the release barred Cunningham’s claim and found in favor of Jackson Hole.

______________________________________________________________

[1] Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715.

[2] People v. Hall (2000) 999 P.2d 207

[3] Northcutt v. Sun Valley Co. (1990) 117 Idaho 351.

[4] Mead v. M.S.B., Inc., 1993 Mont. Dist. LEXIS 243.

[5] Emerson v. Mt. Bachelor, Inc. (2015) 273 Ore. App. 524.

[6] DeFeo v. Ski Apache Resort (1995) 120 N.M. 640.

[7] Ricci v. Schoultz (1998) 963 P.2d 784.

[8] Campbell v. Stevens Pass, Inc., 2000 Wash. App. LEXIS 2142.

[9] Cunningham v. Jackson Hole Mt. Resort, 673 Fed.Appx.841 (10th Cir. 2016).

Product & General Liability

John B. Fraher
Nicholas M. Krebs
Scott W. McCaskill
Jonathan A. Schaub



Product & General Liability