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If You’re Injured While Skiing Can You Sue the Ski Area?Posted February 10, 2017
By Jonathan A. Karon
If you’re injured while skiing can you sue the ski area? The answer is, “it depends”. Virtually all states where there’s skiing have statutes that protect ski areas from being sued for injuries caused by “inherent risks of skiing”. Each state differs as to what its law considers to be the “inherent risks of skiing”. So, whether you can sue the ski area will depend on both where and how you were injured.
Since I’m from the Boston area, let’s look at how the New England states address this issue.
In all the states, if you’re injured because the ski area didn’t properly inspect or maintain their ski lifts, you should be able to sue. Each state has specific laws and/or regulations for ski areas pertaining to proper inspection and maintenance of ski lifts. None of the New England states deem a malfunctioning ski lift to be an “inherent risk of skiing” (and it would be shocking if they did). But what about other ways in which skiers and boarders might get injured.
In New Hampshire (home to Attitash, Cannon, Wildcat and other fine mountains) state law provides that anyone who skis or snowboards accepts “the dangers inherent in the sport” and can’t bring a suit against a ski area for those risks and dangers. The law specifically says that those inherent dangers include: “variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks; trees; stumps and other forms of forest growth or debris; terrain; lift towers, and components…pole lines and plainly marked or visible snow making equipment; collisions with other skier or other persons…” N.H. Rev. Stat. § 225-A:24. So, for example, when the Estate of a snowboarder sued Loon Mountain for fatal injuries he sustained when he went off a jump at one of its terrain parks, the New Hampshire Supreme Court held the case should be dismissed as it was an inherent risk of the sport. This was true even though the jump was man-made. According to the Court, New Hampshire law does not “classify potential obstacles on ski trails based upon whether they are natural or man made.” Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 293 (2007).
Vermont, (home to Killington, Stowe and Sugarbush, as well as Bernie Sanders) takes a different approach. Their state law provides, “a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.” What does that mean? Well, the Vermont Supreme Court says that “a ski area owes its customers the same duty as any other business- to keep its premises reasonably safe.” Dalury v. S-K-I, Ltd, 164 Vt . 329, 335 (1995). In Vermont, skiers cannot sue for “inherent risks” that are “obvious and necessary”. But, “[a] ski area’s own negligence, however, is neither an inherent risk nor an obvious and necessary one in the sport of skiing.” Dalury, 329 Vt. at 336. So, for example, in the Dalury case, state law didn’t prevent a skier from suing Killington for injuries he sustained when he hit a metal pole that was part of the lift line maze. In another case, the Vermont Supreme Court let a skier sue Killington for injuries sustained when he collided with a post during a ski race. Spencer v. Killington, Ltd., 167 Vt. 137 (1997).
In Maine (home of Sunday River and Sugarbush) state law provides that a skier can’t bring a suit against a ski area to recover for injuries that result from “the inherent risks of skiing.” These are defined to include: “existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine made snow; surface or sub-surface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.” 32 M.R.S.A § 15217. That would seem to include almost everything, but Section 8 of the same statute says that it does not prevent bringing an action against a ski area for “negligent operation or maintenance of the ski area.” Maine Supreme Court cases are not entirely clear, but it seems a good argument could be made that if you can show the ski area’s negligence caused your injury, then it would not be considered “an inherent risk of skiing.”
Finally, in Massachusetts (home of Wachusett, Jiminy Peak and others) the law provides that ski area operators shall be responsible for maintenance and operation of ski areas “in a reasonably safe manner” but are not liable for injuries “which arise out of the risks inherent in the sport of skiing.” Mass. Gen. Laws Ch. 143 § 71N. The next section of the law makes skiiers solely responsible for injuries caused by collisions with other skiers or obstructions, unless the obstruction wasn’t marked as required by state law. It also defines unavoidable inherent risks of skiing as including: “variations in terrain, surface or subsurface snow, ice conditions or bare spots.” Mass. Gen. Laws Ch. 143 § 71O. The Massachusetts Supreme Judicial Court provided some guidance in interpreting the law in two cases: one against Jiminy Peak and another against Brodie Mountain.
In one case, a skier claimed Jiminy Peak was liable because it put a snow making machine behind a tree which caused there to be a bare spot on which she skied and injured herself. The Supreme Judicial Court held her case should be dismissed because the “bare spot” was “an unavoidable risk inherent in the sport of skiing.” McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 680 (1996).
In the case against Brodie Mountain, plaintiff was injured when she was struck from behind by a Brodie ski patrol member. The Court allowed the case to go forward as the ski patrol member was an agent of Brodie and the mountain, like any other entity was liable for the negligence of its agents and employees. Tilley v. Brodie Mountain Ski Area, Inc., 412 Mass. 1009 (1992).
So what does all this mean? It means that if you’re hurt skiing or boarding, it could be difficult to recover for your injuries. As in any case, you’ll have the burden to show that ski area didn’t behave reasonably. If, however, they did something they shouldn’t have or failed to do something they should have, which would have prevented your injury, you might have a chance.
If you think you might have a case against a ski area it’s important you contact a lawyer as soon as possible. States have special, shorter statutes of limitations for bringing claims involving ski injuries. Also, in Massachusetts there is a requirement that you notify the ski area of your injury within ninety days (although there are some possible ways around the requirement). Also, snow conditions change and it will be impossible to document what the terrain looked like if photographs are not taken promptly.
Anyway, hopefully, the above is something you’ll never need. As New England just got a snow dump and skiing is the only sport I’m any good at, I’ll be on the slopes this weekend. If you’re out there, best wishes for good and safe runs. Also, remember to wear a helmet.
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