September 15, 2009
By: David K. Jaffe
Ski Trails, Snow Tubing & Snow-Covered Stumps
Since the 1960, skiing has emerged as a significant sport and a large tourist industry for many states in the country. The liability that a ski area provider has to its patrons has come under increasing focus and many legislatures have made attempts at tort reform. It then remains for the courts to interpret that statutory tort reform.
Under the common law theory of volenti non fit injuria, a ski area provider owes no duty to protect a patron from injuries resulting from skiing. A 1951 Vermont case, Wright v. Mt. Mansfield, best demonstrates this concept in that the court found that the ski area provider had a duty to warn patrons of dangers that the provider could have reasonably foreseen and corrected but did not have a duty to warn of the dangers inherent in the sport of skiing such as a tree stump covered by snow.
As the law regarding skiing liability slowly evolved, legislatures placed more duties on the provider, but most state legislature also passed comparative negligence and/or assumption of risk laws. Then, in a 1978 Vermont case, Sunday v. Stratton Corp., the court held that because of the ski area provider's representations concerning the condition of its slopes and the new technology that allowed for better cleaning of the slopes, brush hidden by snow was not an inherent risk in the sport of skiing.<
Fearing the end of the inherent risk doctrine in the sport of skiing, the ski industry sought a legislative response; thus most states with a ski industry passed legislative reform. Connecticut, in particular, passed a statute that the legislature designed to codify the inherent risk doctrine in the sport of skiing.
Skiing accidents have resulted in the litigation of many personal injury cases. Voluntary assumption of risk and contributory negligence dominated personal injury law when skiing was gaining popularity during the 1950s and 60s, giving little recourse to injured skiers. Courts recognized the necessity of balancing the interests of ski area providers and the interests of skiers by defining resort liability in light of the skier's recognition and voluntary assumption of certain dangers intrinsic in the sport.
In Wright v. Mt. Mansfield, essentially the first case concerning ski resort liability, the District Court of Vermont stated that if the plaintiff's injuries were the result of a risk that inheres in the sport of skiing, the ski operator owed no legal duty to skiers and could not be held liable for the plaintiff's injuries. The plaintiff in Wright skied into a snow-covered stump that the ski operator failed to previously remove. The court held for the ski operator, stating that the plaintiff had assumed a risk that was an integral part of the sport of skiing.
Over the next few decades, cases across the country conformed to the ruling in Wright. In 1978, the Vermont decision in Stratton Corp. changed the way the nation's ski industry viewed its potential liability. Most saw Stratton as repudiating the doctrine established in Wright. The facts in Stratton were similar to those in Wright in that concealed objects on groomed trails injured both plaintiffs. Because of new methods of grooming technology, however, the court in Stratton could not accept that brush concealed by loose snow was an inherent danger of skiing. The court held that the ski area had to exercise reasonable care to keep its premises in a safe and suitable condition. If a hidden danger existed, know to defendant, but unknown and not reasonably apparent to the plaintiff, it was the defendant's duty to give warning of it to the latter. Accordingly, the court held that the ski area provider failed to exercise reasonable care in keeping the slopes clear of obstructions in light of the new technology available in 1978 - a technology, and in light of the fact that the ski area provider advertised pristine slopes.
Following the Stratton decision, the legislatures of almost every state with a skiing industry passed or were considering a "ski responsibility act." The Connecticut's legislature's response to Stratton was swift. Four statutes comprise Connecticut's ski tort reform. Conn. Gen. Stat. § 29-211 lists the responsibilities of the ski area operator. Under this section, ski area operators must mark all areas of possible danger to its patrons (including the location of maintenance vehicle and the intersection of trails), visibly mark and label the degree of difficulty of each trail, and notify skiers of devices that aid in preventing runaway skis that could hurt other skiers. Conn. Gen. Stat. § 29-212 explains the assumption of risk on the part of the skier. This section states that skiers assume the risk of injuries caused by the following: variations in the terrain of the ski slope, bare spots on the slopes, conspicuously marked lift towers, objects outside the ski slope, boarding a tramway without informing oneself of how to load and unload from a tramway, and collisions with any person by an skier while skiing. The assumption of the risk of injury under this section, however, would not apply when the negligent operation of the ski area caused the injury. Conn. Gen. Stat. § 29-213 lists prohibited conduct that the legislature applied to skiers, such as intentionally throwing something from the tramway. Finally, Conn. Gen. Stat. § 29-214 provided special defenses for ski area operators against certain claims of civil liability brought by a skier. One such defense, for example, was against skiers who did not ski within the limits of their own abilities. Conn. Gen. Stat. § 29-214 was repealed effective October 1, 2005. Although with the passage of these statutes, the Connecticut legislature seemingly sought to protect its ski industry, subsequent court decisions have removed some of these protections.
In Jagger v. Mohawk Mt. Ski Area, the plaintiff Mary Ann Jagger suffered a broken leg while skiing at the Mohawk Mountain Ski Area. Jagger alleged that James Courtot, an employee of Mohawk Mountain, injured her when he collided with her from behind. On the day of the collision, Courtot was participating in Mohawk Mountain's onsite preseason clinic, designed to train ski instructors. Courtot was not providing ski instruction to Jagger or interacting with her in any way when the collision occurred.
Jagger sued both Courtot and Mohawk Mountain in a diversity suit in the U.S. District Court for the District of Connecticut alleging two claims. First, she sought damages based on "vicarious liability for Courtot's conduct and Mohawk Mountain's own negligence in failing to properly train and supervise him. Second, she sought damages because the collision was caused by Courtot's own negligence in that he was skiing at an unreasonable speed and failed to keep a lookout, slow down, turn, or stop, although he reasonably could have done so.
Mohawk Mountain moved to dismiss, stating the claim was barred under § 29-212, which provides that skiers "assume the risk of and legal responsibility for any injury ... arising out of the hazards inherent in the sport of skiing, unless the injury was proximately caused by the negligent operation of the ski area by the ski area operator, his agents or employees" including the hazard of "collisions with any person by any skier while skiing." The district court reserved judgment, finding that the negligence of ski area operators was a public concern, and that the Jagger case presented circumstances which were likely to happen again. Consequently, the district court sought certification of the following question directly to the Connecticut Supreme Court. Pursuant to § 29-212, does a skier assume the risk of, and legal responsibility for, an injury arising out of a collision with a ski instructor, acting in the course of his employment with the ski area operator, when the collision is caused by the instructor's negligence?
The Connecticut Supreme Court held that § 29-212 did not bar the action; specifically, the Court held that the skier could maintain an action in negligence against the operator because risk was not a hazard over which the operator had not control or over which an operator could not reasonably act so as to ameliorate the potentiality of the harm. There was a vigorous dissent in Jagger, holding to the contrary.
In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (2005), the Court dealt en banc with the issue of a liability waiver prospectively releasing the defendant from liability for its own negligence. In particular, the plaintiff was using the Powder Ridge ski resort facility for snow tubing with his children. While snow tubing, the plaintiff's foot became caught between the snow tube and a man-made bank of the snow tubing run, resulting in serious injuries that required multiple surgeries.
The trial court granted summary judgment, holding that the liability waiver signed by the plaintiff as a condition of using the facility precluded him from bringing the action, based on its 2003 decision in Hyson v. White Water Mt. Resorts of Conn., 265 Conn. 636 (2003). The Supreme Court, in a divided 4-3 decision, held that the liability waiver was void as against public policy. The Court noted that the law does not favor contract provisions that relieve parties from their own negligence. This doctrine was employed by the Court earlier, in Hyson, to decide that the particular waiver in that case was ineffective, while expressly leaving open the question of whether such a waiver could ever be effective. When squarely compelled to answer that question in Hanks, the Court determined such a waiver is improper.
The Court reasoned that, due to the nature of the transaction, the plaintiff was under the care and control of the defendant. Furthermore, the plaintiff lacked the knowledge, experience and authority to determine, much less ensure, that the snow tubing runs were maintained in a reasonably safe condition. Therefore, the Court concluded it would be illogical to permit users of the facility, and the public generally, to bear the costs of risks they have no ability to control.
The vigorous dissent