Winter 2004
LITIGATION
SNOW SUITS 
Ah, winter! The crisp scent of majestic snow-covered ponderosa pines, the grand visage of snow-capped Sierra peaks! The happy laughter of rosy-cheeked children on a winter holiday vacation! Litigation!
Litigation is everywhere in modern American life, and snow sports are no exception. The ski industry’s response to the challenge of civil liability is highly instructive to business people and insurance companies alike and is illustrative of what can be done to limit exposure in a so-called “nonessential” activity.
Over the past decade, the industry has waged a largely successful legal campaign to limit its liability. Its twin defenses have been the doctrine of primary assumption of the risk and increasingly lengthy release forms.
In 1992, the California Supreme Court held that the legal doctrine of primary assumption of the risk barred a sports participant’s personal injury suit against a fellow participant in a touch football game. The court specifically held that a person has no duty to avoid injuring another, where both are knowingly engaging in a sport which has inherent risks which include accidental careless behavior. The Supreme Court hinted at the extension of its ruling to the world of snow sports by using moguls – uneven terrain caused by skiers repeatedly following the same path down the hill – as being an example of a condition inherent in the sport where there would be no duty to eliminate the risk.
Following its own signpost, in 1997 the high court explicitly extended its 1992 ruling to skiing, holding that primary assumption of the risk barred a plaintiff’s lawsuit for injuries he suffered in a collision with another skier. The high court held that absent reckless conduct or intentional acts, collisions and spills were inherent risks of Alpine skiing.
Subsequent appellate cases have established that virtually anything “natural” has been found to be a no-liability situation: Falling down a rock-strewn slope to one’s death while training for the ski patrol does not state a cause of action – the novice patroller knew what he was getting into. Snow-covered tree stumps, bare spots, lift towers, and a tree at the edge of a ski run have also been found not to be the source of any liability.
In another case, despite the oft-expressed thoughts of many skiers over 40 years old – and perhaps implicitly those of the appellate judge who authored the opinion – the court found that snowboarding is not reckless by its very nature. In that case, the court held that a snowboarder, while not a “coparticipant” with the skier he rammed into at over 30 m.p.h., nevertheless only had a duty not to increase the risks inherent in the sport of snowboarding. In other words, absent reckless conduct, there was no cause of action for snowboarding around skiers.
Of course, there are acts which will remove from a defendant the shield of the plaintiff’s assumption of the risk. Skiing while intoxicated (the defendant, that is) is one such act. Using a snowboard without a retention leash (thus, allowing the board, which had been taken off, to run downhill and spear a skier at high speed) is not within the doctrine of assumption of the risk.
Man-made obstacles, as opposed to natural ones, are also seen as beyond the scope of the doctrine. In one classic case, the court of appeal reversed the trial court’s granting of a ski resort’s motion for summary judgment, the appellate panel holding that assumption of the risk did not preclude a plaintiff from suing for hitting a sign on the ski run allegedly erected by the resort’s management in a dangerous location. The sign read, of course, “Be Aware – Ski With Care.”
The second prong of the ski industry’s defense has been releases. Lots of them. The courts have held that releases of negligence claims in a recreational context are not against public policy. Accordingly, ski resorts now require signatures and initials liberally sprinkled beside and after small font text so long and so dense as to resemble a tax code statute. The duel between inventive plaintiffs’ counsel and the resorts’ lawyers over the releases’ language is one of the classic legal duels of the 1990s. Overall, the resorts are ahead on points.
Release forms have been upheld for lessons, equipment that needs to be adjusted (bindings, etc.), and rental equipment. Releases as to terrain parks (jumps, rails, and other obstacles) can also be valid. Even liability relating to ski lifts, which in California are considered common carriers, can be released to the extent the plaintiff alleges only ordinary negligence.
Of course, the resorts have not won every battle in the war of informed consent. In one case, the court stated that although plaintiff had signed a release as part of his mid-week (Monday through Friday) annual lift pass, as plaintiff was injured on a Sunday when he was not skiing on his annual pass but instead on a daily lift ticket he had bought, and because the one-day lift ticket did not contain the necessary language, the release was irrelevant. It is not hard to imagine the defendant resort did not promptly place the release clause on its daily passes, as well as its annual ones. Legal victories can be fleeting.
In summary, from the above representative cases we can see how one recreational industry has methodically limited its potential liability. The overall result is pretty much a common sense one — skiing is life, and life has risks. And remember: As a very wise man once said, you can only get injured while skiing if you fall.
K. Stephen Tang
Mr. Tang is a Director of the firm and practices in the firm’s Insurance Department. Email: kst@kpclegal.com.
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