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American Skiing and Snowboarding Injury and Death Liability

It's no mystery that skiing and snowboarding are considered dangerous sports. For athletes seeking an adrenaline high, these two beloved snow sports offer various ways to get there. Whether through the thrill of racing, jumping, back country skiing, or half pipe, core to the rush is the requirement of precision and the risk of injury. And, injuries do happen. Sometimes worse happens. Every regular winter mountain-goer is simply used to seeing an ambulance roll into the lodge from time to time. For anyone who follows competitive skiing or snowboard, you know that even the best of the best end up injured or dead as a result of pushing the limits of the sport. When these events happen, we are reminded of the risks of the sports, of the potential injury and loss that could come with it, and, in the worst cases, tragedy. What we do not usually hear about is the liability associated with ski and snowboard injuries and death. We'll cover that here.

When we say "liability", we are talking about financial responsibility for injuries and deaths which occur on the ski and snowboard runs. It's admittedly not the first thing you'd think about after an accident, but for the victim and his or her family, it's a top priority. We write this article to provide clarity for you and your loved ones.

Liability can arise in few different ways under the laws of the United States, but when we talk about this type of liability, we're generally talking about premises liability, meaning liability of the owner of the mountain and/or resort, although there may be a separate basis against other individual or individuals. Premises liability in all but a few instances is based on a theory of negligence. Likewise, an action against another individual on the mountain would most commonly be based in negligence but, given the right facts, could be based on an intentional tort, such as assault and battery. In all of the above instances, the action would be based on state law, not federal law, so really investigate your situation, we recommend you meet with a personal injury lawyer who handles ski and snowboard accident cases. That may be someone local to you or someone local to the mountain where the accident occurred. Because this area of law does not differ too much from state to state, let's talk about these types of cases one by one.

Premises Liability: Liability Against the Mountain or Resort

If you're a snow sport enthusiast who has not been in an accident, you likely cringe at the idea of an injured skier or snowboarder trying to sue the mountain. Well, that's understandable because if you love the sport, you likely love your mountain. But, let me put your mind at ease here. The burden of prevailing in an action against the resort or mountain is high. The law does not allow for anyone injured on a mountain to recover against the owner or operator. That wouldn't really be consistent with our public policy and it's simply not the law. After all, as a society, we don't want people acting in an unsafe manner with part of the motivation being that they could become hurt and recover against the mountain. On the contrary. We want people to enjoy the sport without putting others' safety at risk. The result is that patron must act in reasonable manner while skiing and snowboarding. If he or she doesn't, liability against the mountain could be eliminated and, as we'll discuss soon, liability could attach to the patron regarding injuries he or she causes to others.

Regarding the elimination of liability for a patron's bad behavior, I'm talking about the doctrines of comparative negligence and contributory negligence. I've included a couple links there to better explain these doctrines, but they basically go as follows. In the few pure contributory negligence states, if the injured party was even slightly at fault (even 1%), then that party is barred from recovering. That's a pretty tough rule. You can imagine fact patterns on the mountain in which the injured party was at least 1% at fault. Really, regardless of what defect there might have been on the hill, like an unmarked drop off, a jury may find that the party with the injury was traveling too fast or that he or she was slightly negligent for failing to see a sign posted about the drop off a hundred yards back. The result is no recovery, regardless of the extent of damages.

Fortunately, pure contributory negligence exists in only a handful of generally southern states, so it's not all that relevant here, but good to know in understanding it's cousin, comparative negligence. Comparative negligence doctrine looks to apportion fault amongst the parties so that it equals 100%. States then tend to have limits on any recovery and, for those who do recover, the recovery is reduced proportionately by the degree of their own negligence. For example, if the patron is determined to be 20% at fault in a comparative fault state and the recovery is $10,000, that amount would be reduced by $2,000 and the party with the injury would receive only $8,000. You can logically see how this would play into recovery on skiing and snowboarding cases.

Finally, there is the greater burden for the business owner who invites customers on to his or her property. Although mountains can be gargantuan, we can agree that when you own a business and invite a customer onto your property for a cost, you should be required to make an effort to eliminate dangerous defects in the property. That is, a greater responsibility than when you invite a friend over your house. Although it does vary from state to state, the most common rule is that a business must take steps to discover and eliminate dangerous defects. But what does that mean for a ski and snowboard mountain? Well, it means just that. It must take reasonable steps to identify and eliminate dangerous defects. We don't want people falling through undiscovered caverns in the middle of trails, nor do we want people to unknowingly encounter two hundred yards of shear ice with a sharp turn and drop off half walk down. That would be bad, but the good news is that operators also don't want this. Not just for the liability reason, but for the public relations reason. People would simply stop going to a mountain that provided life threatening surprises. Operators have adopted and every trail is now traversed, groomed, and inspected by operator staff multiple times per day. Ahh, the system works, so you might be wondering why we still have the liability issue. Well, although operators do a good job generally, individual employees are more prone to isolated mistake. A tired ranger may simply skip an inspection run. A snow groomer operator may skip a run because it's near his coffee break or he receives a personal phone call. Stuff happens that influences individual behavior and results in injury. The facts and evidence are important, as is getting a good education by an experienced personal injury attorney soon after the accident.

Negligence or Intentional Tort: When Injury is the Fault of Another Skier or Snowboarder

Anyone who has traversed the mountains knows there are mostly careful and some careless people out there. It's really pretty unavoidable to encounter other skiers and snowboarders who make your experience more dangerous. There are certainly things you should do to protect your self, including wearing the right safety helmet and other safety equipment, keeping vigilant of your surroundings and other patrons in your vicinity, and reporting to mountain staff when you encounter people skiing or snowboarding dangerously. But, sometimes these measures are simply not enough. You can hurt an unprotected part of your body in an accident. Someone completely outside of your field of vision can collide with you at high speed from behind. You may not have the opportunity to report the dangerous operators to mountain staff because your first interaction with him, her, or them may be upon impact.

When another skier or snowboarder collides with you or causes you injury, the cause of action would depend on facts surrounding the situation. That's because there are intentional causes of action and there are negligent causes of action. So, the requisite question is, did the other patron injure you intentionally or was it a result of his or her carelessness? If it's intentional, then the intentional claims of assault and battery may be applicable. It it's carelessness, we're talking about negligence. It's likely negligence and so we'll delve into that one further. The most common standard for negligence across the country is that there is a duty of care which the defendant breached and that breach caused injury and damages to the plaintiff. "Duty of care" may seem like magic legal language and, well, it is. But it's also not that difficult to explain. Basically, there is a level of behavior that we expect a person to live up to in any given situation. We all have an idea of what's reasonable in many different situations. The same goes for skiers and snowboarders. A case of this nature would likely resolve through an insurance adjuster negotiation, but if it were to go to litigation and trial (the ultimate alternative to negotiated settlement), it would be decided by a jury in almost every jurisdiction. That means a jury of other community members would hear the facts, review the evidence, and then decide whether the defendant met his or her duty of care. So, to put it another way, if you're skiing down the mountain and your natural reaction to a passing skier is that you are offended at how rude and dangerous that person was, it's likely the jury would feel the same way. In such a case, you'd bring an action individually against the other skier in negligence for causing your injury.

The Difference Between Bringing the Claim and Recovering the Money

Okay, so there you have it. We've discussed the two types of causes of action when injured on a ski or snowboard run. If you are injured, you'd either have an action against the mountain, operator, another skier, snowboarder, or nobody at all. But, there is a clear difference between having an action and actually recovering money. If you are the one with the injury, you likely need money. You are likely out the cost of your medical bills, your lost wages, future losses for each of those and then there is the matter of getting some sort of recovery for your pain and suffering. Unfortunately, just because you have a case, doesn't mean you'll recover. Your chances are substantially higher when there is an insurance policy to attach and for that reason, most attorneys will not handle your case on a contingent basis without that being the case. Because there are generally exclusions for intentional torts, you'd likely only really have an actionable case if the injury was due to the negligence of another patron or due to the negligence of the mountain or operator. In such a case, a claim would be submitted and the mountain's insurance company would assign a claims adjuster to assess the claim and negotiate settlement. I recommend you engage an experienced personal injury lawyer before doing this. As fair warning, the adjuster does not work for you. The adjuster works for the insurance company, will likely be very friendly and accommodating, will want full access to your medical and work records, and has the main job of limiting your claim. You are far better off when you have the benefit of an attorney who understands the dynamics and has the experience to objectively assess and negotiate your case.

Ultimately, your case will resolve either by negotiated settlement, either through the negotiated insurance claims process or through litigation, or it will be resolved by a court, either by a judge or jury, depending on the jurisdiction. In either event, your case needs to be well prepared and evidence needs to be secured and witnesses spoken with early in the process.

The Most Important Lesson of Skiing and Snowboarding Liability

If I put this title first, you might have stopped reading after the first paragraph, so here we are at the end after the benefit of a good mountain liability discussion. The most important lesson of skiing and snowboarding liability is that you should speak with an experienced personal injury lawyer as soon after the accident as you are able. Preserving evidence is so important in these cases because conditions change rapidly and many patrons and employees alike are only at the mountain on a temporary basis. Although it may be simple to identify the personnel who witnessed and helped with the situation and it's aftermath shortly after it occurs, imagine trying to identify a witness a year later. A lack of information and evidence can be devastating to a negligence case because it's the injured party's responsibility to prove the other party was negligent. That's a tough one when there's nobody ascertainable to testify as to what happened. You'll not fair well if you are the only one who can testify as to your own injury. Like all accidents, if you're injured on the mountain, get the immediate medical attention you need and then take the steps necessary to preserve your case. Good luck and be safe out there!

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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