moguls and terrain-parks cannot be said to be strictly “necessary.” Groomers can eas- ily transform mogul fields into carpet-like corduroy overnight, and terrain parks are purely artificial structures created by ski ar- eas themselves. A seemingly endless pa- rade of potential liability risks flow from Sunday and Frant. If ski areas must continu- ally ensure that open, designated trails are free of such “unnecessary” risks, the entire sport would be fundamentally changed. Courts in other states have recognized that “skiing is a quasi-dangerous, thrill- seeking sport, and if certain ‘dangers’ are removed, the interest in skiing would be greatly diminished.”38
Justice Cardozo
made this observation over eighty years ago when he remarked that there would be “no point” and “no adventure” in a sport that has been stripped of the very risks that define and animate it.39
The Ver-
and bountiful harvests for person- al injury lawyers. If the last thirty years of ski liability jurisprudence is any indication, the Court prefers a system in which ski ar- eas are forced “to insure against the risks and spread the increased cost of insurance among … all skiing customers.”41 Sunday is not responsible for all of the ski industry’s woes, but it has undoubted- ly contributed to escalating operating ex- penses for an industry that has not tradi- tionally boasted wide profit margins to be- gin with. Ski areas face a great deal of finan- cial uncertainty by virtue of their weather- dependency alone, and the tell-tale signs of climate change—shrinking snowpack, volatile and shifting weather patterns, rap- idly receding glaciers, and truncated sea- sons—pose a threat to their very existence. Vermont’s resorts sustained massive reve- nue losses during the 2011-12 season due to the snow drought and record high tem- peratures. In some seasons, northeastern ski areas have experienced significant de- clines in gross revenue even when weath- er conditions have been favorable and the industry as a whole has achieved marked growth.42
mont Supreme Court has never acknowl- edged the legitimacy of this philosophy. Instead, it seems committed to the goal of offering placid environs for “the timo- rous”40
In addition to the unpredictable forces of
nature, Vermont’s ski areas must contend with the unduly burdensome insurance and litigation costs that go hand-in-hand with an expansive liability system. In the aggre- gate, Vermont ski areas pay an estimated $20 million in annual insurance premiums, and most policies come with high deduct- ibles or self-insured retentions (SIRs) that require the ski area to foot the bill for siz- able litigation costs (i.e., attorney fees, set- tlements, and judgments) before coverage is even triggered. These insurance and liti- gation expenses—coupled with jaw-drop-
www.vtbar.org
ping labor, energy and regulatory-compli- ance costs incurred to keep the lights on and the lifts spinning—also translate into higher prices at the ticket window. High- er lift ticket prices have not yet led to a decline in the number of annual skier vis- its (Vermont has averaged about four mil- lion skier visits annually over the last de- cade) because the throngs of non-res- idents who visit our slopes each year oc- cupy more affluent strata than most Ver- monters. But even the high-end ski market has a finite tolerance for price hikes, and a confluence of external factors (travel ex- penses, poor weather or lackluster surface conditions) often render the purchase of a life ticket cost-prohibitive. Sadly, ordinary Vermonters—the kind of people who es- tablished and populated the many family- owned “rope tow” ski areas that once ex- isted throughout the state—have already been priced out of active participation in the sport.
Perhaps the most tragic of all the Sun-
day effects was the virtual extinction of Ver- mont’s small ski area operators who simply could not afford the “highly sophisticated equipment and machines” Stratton had touted in Sunday.43
It is hardly surprising
that these relatively low-tech, shoestring operations imploded under the weight of Sunday’s purchase-or-perish mandate. For example, Hogback, a once popular fam- ily-oriented ski area founded in the mid- 40s, was forced to shut down in 1986 when its insurance rates exceeded its gross in- come.44
The Mad River Glen Cooperative is among the few no-frills ski areas still in ex- istence and its profit margins are razor-thin. Mad River generally eschews grooming and snowmaking, and its daredevil terrain is reminiscent of the narrow, steep, rough- hewn trails the Civilian Conservation Corps blazed up and down Mount Mansfield in the 1930s. Mad River’s purist philosophy is admirable, but it could cost it dearly in the courts. One would think its cautionary slo- gan, “Ski It If You Can!,” would discharge any duty owed to the timorous, but Sunday and Frant hold otherwise. In the eyes of the Vermont judiciary, Mad River and Stratton are fungible entities. Both are equally du- ty-bound to purchase and employ state-of- the-art technology, eliminate all “unneces- sary” surface hazards, and cultivate kinder, gentler alpine fairways for the faint-heart- ed.
A Model for Change: Michigan’s Ski Area Safety Act
Today, almost every ski industry state in the country has legislation that allocates risk in a way that limits the liability of ski areas for skiing-related injuries. Vermont’s sports injury statute was the first of these
THE VERMONT BAR JOURNAL • SUMMER 2012 21
Putting Risk Back on the Downhill Edge
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