by Andrew A. Beerworth, Esq.


Putting Risk Back on the Downhill Edge: The Case for Meaningful Limitations on Ski Area Liability


“For me, skiing is a physical necessity. I have a need for risk.” ~Jean-Marie Messier


“I do not participate in any sport with ambulances at the bottom of the hill.” ~Erma Bombeck


Introduction Few pastimes capture the rugged, in-


trepid spirit of American individualism bet- ter than alpine skiing. At its core, skiing is a liberating but dangerous sport best suit- ed to risk-taking thrill-seekers such as Jean- Marie Messier. The fact that three skiers were killed on Vermont’s slopes this year is a sobering reminder of this reality.1


The up-


scale facilities and guest services offered at many major resorts may prompt the Erma Bombecks of the world to take to the hill, but the sport itself remains fraught with risk.


Although Vermont’s “sports injury” stat- ute was specifically enacted to insulate ski areas from tort liability for injuries caused by a host of inherent hazards on the slopes, the Vermont Supreme Court has construed the statute’s ambiguous language in favor of allowing recovery for injured skiers un- der traditional tort principles. As a result, the sports injury statute has been rendered a virtual nullity, leaving ski areas exposed to the same kind of liability imposed in the infamous Sunday v. Stratton2


decision. This article examines the development


of the law in this area, explains why the protections afforded by the sports injury statute are largely illusory, and proposes amendments to the statute that would de- lineate specific inherent risks of skiing and compel courts to enforce sensible, bright- line limitations on ski area liability.


The Assumption-of-Risk Doctrine


Before 1978, ski areas found solace in the assumption-of-risk doctrine, a defense often expressed in the Latin phrase volenti non fit injuria (to a willing person, no inju- ry is done). Leading jurists during the first half of the twentieth century, most notably Justice Oliver Wendell Holmes and Justice Benjamin Cardozo, unflinchingly applied assumption-of-risk principles to deny re- covery to injured plaintiffs.3


brought by a person who had been in- jured as a result of being jostled about on an amusement park ride aptly named “The Flopper,” Justice Cardozo wrote:


18


Volenti non fit injuria. One who takes part in such a sport accepts the dan- gers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his an- tagonist or a spectator at a ball game the chance of contact with the ball … The plaintiff was not seeking a retreat for meditation … The timorous may stay at home.4


For Cardozo, the plaintiff’s injury was “the very hazard that was invited and foreseen … The very name, above the gate, ‘the Flopper,’ was warning to the timid.”5


Car-


dozo also added a sentiment to which many skiing enthusiasts subscribe: “There would have been no point to the whole thing, no adventure about it, if the risk had not been there.”6 Initially, Cardozo’s logic was applied to ski accident cases governed by Vermont law. In the 1951 case of Wright v. Mount Mansfield Lift, Inc., a federal judge rea- soned that the mechanism of the plaintiff’s injury—a tree stump covered by snow on an intermediate trail—was an inherent risk of skiing that precluded any recovery.7 In the 1976 case of Leopold v. Okemo Mountain Inc., the court denied recov- ery for a skier who sustained fatal injuries as a result of colliding with an unpadded lift tower on expert terrain.8


The fact that


the ski area could have padded the tower was irrelevant. The court reasoned that the plaintiff had made a “logical … choice as to whether he should proceed and assume the consequences of skiing in an area where a plainly apparent and necessary danger ex- ists.”9


For Vermont ski areas, however, the


halcyon days of Wright and Leopold were about to come to an abrupt end.


The Sunday Decision In a 1929 case


On a fateful day in February 1974, a nov- ice skier named James Sunday took to the slopes at Stratton. While traversing the out- er edge of a novice trail “at a speed equal to a fast walk,” his ski became entangled in a “clump of brush” that was “concealed by loose snow” which caused him to lose control and strike a boulder off the trail.10


THE VERMONT BAR JOURNAL • FALL 2011


Tragically, Sunday’s injuries resulted in per- manent quadriplegia. He sued Stratton, al- leging that it had negligently maintained the trail and failed to warn him of hidden surface hazards. The trial judge, who had openly stated that ski areas should no lon- ger be allowed to “hide behind” the phi- losophy that injuries are an inherent risk of skiing, denied Stratton’s motion for a di- rected verdict based on assumption-of-risk principles.11


Stratton appealed to the Vermont Su-


preme Court but the Court, in an opinion authored by Justice Larrow, affirmed the Sunday verdict in its entirety. Stratton’s central contention on appeal was that it had no legal duty to clear its trails of natu- ral growth because such hazards were an inherent risk of the sport. It relied princi- pally on Wright, which, after all, featured strikingly similar facts, viz., injuries resulting from contact with snow-covered natural growth on non-expert terrain. The Court, however, swept Wright aside and de- clared that “the passage of time has great- ly changed the nature of the ski industry” such that tree stumps could no longer be characterized as inherent dangers.13 The Court seized on evidence that “Stratton had widely advertised its world- wide reputation for trail maintenance, ‘me- ticulous grooming’ and ‘top quality cover,’” and used “elaborate machines” to remove natural debris from the trails in order “to achieve a ‘complete new surface,’ like a ‘fairway, absolutely flat.’”14


From this Strat-


ton-specific evidence, the Court conclud- ed that all ski areas had (or should acquire) the technological sophistication and main- tenance capabilities necessary to remove natural growth from the slopes. Sunday empowered judges and juries to decide, on a case-by-case basis, wheth- er a particular risk of skiing was “inher- ent” based on whether the danger could have been removed or prevented through the use of available technology. Vermont’s highest court even twisted Cardozo’s as- sumed-risk rhetoric into a pro-plaintiff bat- tle-cry, declaring that “the timorous no lon-


www.vtbar.org


A jury ultimately found Strat- ton to be 100% at fault for the accident and awarded Sunday $1.5 million in compensa- tory damages.12


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48