slopes in the East. If a ski area were required to close a trail every time there was ice present, it would surely be forced to curtail its operations for a good part of the ski season … Ice, be- ing an obvious and necessary danger in the sport of skiing, Sugarbush had no duty to warn [plaintiff-skier] and its other patrons of the icy conditions of the trail, or take any steps to attempt to eliminate the ice.28


The sports injury statute had nothing to do with the favorable result in Nelson. Sugar- bush obtained a pre-trial dismissal of the claim because it satisfied the court that ice was an “obvious and necessary” dan- ger under Sunday. And at bottom, Nelson was an easy case to decide. Ice is a near- ly ubiquitous and indelible characteristic of eastern skiing, and many advanced skiers and competitive racers crave the oppor- tunity for unparalleled speed and techni- cal swashbuckling that only “eastern hard- pack” makes possible. Though the result in Nelson may have lulled ski areas into a false sense of secu- rity, the Vermont Supreme Court’s decision in Frant v. Haystack Group, Inc. sent a clear message that Sunday remained the law of the land. In Frant, an intermediate-to-ad- vanced skier was injured at Haystack when he skied into an unpadded wooden post in a corral system designed to direct and fun- nel skiers into a lift line at the base of the mountain.29


post on earlier runs and admitted that he was skiing “pretty fast” at the time of the accident.30


The trial court in Frant dismissed the claim on the ground that Haystack’s use of the corral posts posed an “obvious and necessary” risk of injury. The Supreme Court, however, reversed the trial court’s ruling and held that the plaintiff was enti- tled to a jury trial on the issue of whether the unpadded wooden post construction of the corral system was “necessary” within the meaning of the sports injury statute.31 The plaintiff’s ski-area safety expert had opined that there was a “safer way” of cor- ralling skiers, namely by using more forgiv- ing, plastic posts.32


Consisent with Sunday,


the Court held that Haystack could be held liable if the plaintiff’s expert succeeded in convincing a jury that Frant’s injury was foreseeable and avoidable based on the availability of safer, alternative methods.33 The Court in Frant declared that “the only difference between Wright and Sun- day is in their results, not in the princi- ples of controlling law.”34


It then deduced,


rather remarkably, that in reaffirming the Wright standard in abstract form without delineating any concrete skier risks such as tree stumps, the sports injury statute had implicitly condoned the Sunday-Frant ap- proach:


The skier had seen the corral


In drafting [the sports injury statute], the legislature avoided cataloguing fact-specific examples of ‘obvious and necessary’ risks inhering in sports such as skiing. The legislature thereby rec- ognized, as Wright demonstrates, that yesterday’s necessary skiing risks tend to become, with the passage of time and advancement of technology, rea-


Frant officially reduced the sports injury statute to nothing more than a paper tiger. As one commentator observed, the Court in Frant “deftly sidestepped the legislation, and reasserted the authority of Vermont’s courts to determine liability for the harms resulting from skiing.”36


Despite the fact


that the sports injury statute was clearly in- tended to limit the liability of ski area op- erators, Frant made abundantly clear that Sunday was alive and well. And if ski areas thought they could circumvent Sunday by having recreational skiers and amateur rac- ers sign liability releases, they were sorely mistaken. Shortly after Frant was decided, the Court declared general ski liability re- leases void on “public policy” grounds.37


The Need for Ski Area Liability Reform in Vermont


In its current form, Vermont’s sports in- jury statute is an empty legislative plati- tude incapable of insulating ski area oper- ators from Sunday-style liability. Although the legislature has since enacted a sepa- rate statute (12 V.S.A. § 1038) that categor- ically immunizes ski areas from all liability for injuries sustained on “terrain outside open and designated ski trails” (i.e., closed trails or backcountry terrain), the Sunday- Frant paradigm governs all


negligence


claims arising out of injuries sustained on open and designated trails. For all of these claims, the question boils down to whether a given hazard—even if patently obvious— is “necessary” in light of technological or safety advancements in the industry. Taken to its logical terminus, the Sunday-


Frant necessity test could result in ski area liability in a wide range of circumstances. While trees are certainly an essential fea- ture of any glade run, a lone tree (or a few sparsely scattered trees) in the middle of an otherwise fast, open slope is probably not “necessary” under Frant. It is also arguably unnecessary for ski resorts to cut serpen- tine-like trails over quirky double fall-lines or crests that result in “blind jumps” when such characteristics increase the risk of in- jury and could be eliminated through alter- native trail designs or earth-moving equip- ment. Even such commonplace features as


20 THE VERMONT BAR JOURNAL • SUMMER 2012 www.vtbar.org


sonably avoidable … The language of [the statute] is broad enough to ac- count for safety improvements in the skiing industry. We do not think the legislature’s purpose in reasonably protecting the skiing industry is com- promised by asking a jury to supply a contemporary sense of what consti- tutes an obvious and necessary risk. Skiers should be deemed to assume only those skiing risks that the skiing industry is not reasonably required to prevent.35


Putting Risk Back on the Downhill Edge


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