ger need stay at home.”15 Not surprisingly, ski areas from Maine to California reacted to Sunday with “unmiti- gated panic.”16


Due to the drastic increase


in liability exposure, insurance premiums for many ski areas across the country dou- bled or tripled on the heels of the deci- sion.17


Jack Murphy, the general manag- er of Sugarbush at the time, reported that the mountain’s liability premiums had “just about doubled.”18


of lift tickets skyrocketed,”19


As a result, “the price at least four


small Vermont ski areas shut down com- pletely, and “the two primary ski area insur- ers threatened to withdraw from Vermont during 1978, effectively putting in jeopardy one of the state’s major industries.”20


Judicial Nullification of the Sports Injury Statute


Even before the Vermont Supreme


Court’s ruling, the legislature responded swiftly to the disastrous ripple effects of the Sunday verdict by enacting the “sports injury” statute (12 V.S.A. §1037). The stat- ute, which was the first of its kind in the na- tion, reads in full:


Notwithstanding the provisions of [Vermont’s comparative negligence statute], 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.21


The legislative history of the sports inju- ry statute reveals a very clear purpose: to consign Sunday to the ash heap of bad law and reinstate the assumption-of-risk princi- ples applied in Wright.22


The statute itself,


however, is terse, generic and textually in- capable of serving the objectives articulat- ed in the legislative history. It fails to men- tion skiing by name and, instead, applies to “any sport.” While the statute reaffirms the basic tenet that a person assumes the inherent (“obvious and necessary”) risks of any sport, it does not actually delineate any specific risks that skiers assume as a mat- ter of law.


Because the sports injury statute was en- acted before the Sunday appeal was de- cided, it was a preemptive reprisal that did not adequately account for the Supreme Court’s nuanced holding. The statute codi- fied the assumption-of-risk doctrine by in- voking the “obvious and necessary” catch- phrase from Wright, but the Court in Sun- day did not reject the legal standard enun- ciated in Wright—it rejected application of the Wright standard to a particular ski- ing risk (viz., natural growth on novice ter- rain). In essence, the sports injury statute resurrected a common-law creature that had never passed away in the first place. Sunday actually reaffirmed the primary as-


www.vtbar.org


sumption-of-risk doctrine in recognizing that certain risks are so obvious and nec- essary that ski areas do not owe a duty to warn of such risks or take any action to eradicate them. The problematic dimen- sion of Sunday was the Court’s finding that latent natural hazards on novice terrain should no longer be counted among such risks. Thus, while Sunday did not quibble with the Wright standard, it rejected the idea that skiers invariably assume specific risks that are “inherent” to skiing despite the passage of time. In the end, Stratton’s litigation strategy


in Sunday made it easy prey for the Court. At trial, it touted its thorough trail main- tenance and grooming practices in an at- tempt to prove that the brush could not have existed on the trail at all.23


One of


Stratton’s experts had even testified at tri- al that any natural growth on the skiable portion of the trail should have been elim- inated.24


On appeal, Stratton resorted to


the incongruous argument that brush-and- bramble entanglements were among the inherent risks of skiing the trail.25


Stratton


also conceded in its appellate brief that the snow-covered tree stump in Wright “may well be the basis for negligence today in view of improved grooming techniques.”26 This fateful concession is the doctrinal hook on which Sunday hangs. Unfortunate- ly, the sports injury statute, enacted before the Sunday appeal was decided, simply failed to address the Court’s evolutionary approach to ski area liability. Ski liability cases in the post-Sunday era indicate that ski areas have not derived any appreciable benefits from the sports injury statute. Even where the results have been favorable, they have flowed directly from the primary assumption-of-risk principles that Sunday left intact, and not from any special protections afforded by the statute. Nelson v. Snowridge Inc., for example, in- volved an expert skier who sustained inju- ries after falling on an icy swath of Sugar- bush’s famed “Upper F.I.S.,” a steep dou- ble black diamond run.27


The skier filed


suit against Sugarbush, alleging that it had been negligent in failing to properly main- tain the trail and in failing to warn her of the trail’s icy conditions. Although the Court in Nelson ultimately dismissed the claims against Sugarbush, it scrutinized the hazard through Sunday’s lens of technolog- ical sophistication and feasibility:


No improvements in grooming tech- nique have been able to eliminate ice from the New England ski slopes … often described as ‘frozen granular’ and ‘eastern hardpack.’ Ice is both an obvious feature of skiing and a neces- sary one; despite exhaustive groom- ing efforts, ice still remains evident on at least some portion of most ski


THE VERMONT BAR JOURNAL • SUMMER 2012 19


Putting Risk Back on the Downhill Edge


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