This page contains a Flash digital edition of a book.
In Jakubovsky v. Blackjack Ski Corpora-


tion, a skier brought suit against a ski area for injuries she received as a result of col- liding into a wooden fence along the side of a trail to prevent skiers from falling over a steep embankment.57


Consistent with


Kidwell and Anderson, the Court reasoned that safety fences, though not specifically included in the SASA, were similar to snow- making equipment and lift tower compo- nents in that they serve a functional pur- pose relating to the maintenance and op- eration of the ski area. The fact that the fence was made of wood, as opposed to a safer material such as netting, was imma- terial. The Court explained: “Having found that the fence was a necessary and obvious hazard, I may not consider whether it could have been less rigid and more forgiving. Nothing in the language of the statute al- lows consideration of factors of this sort.”58 Notably, California is one of the few ski states that do not have a ski liability statute. California courts, however, have repeated- ly looked to Michigan’s SASA as “persua- sive authority” in determining what skiing risks are “obvious and necessary” under the common law of California.59


Relying on


Michigan’s codified catalogue of inherent risks, California courts have denied recov- ery to injured skiers in cases involving col- lisions with trees,60 lift towers,61 equipment.62


inadequately padded


and unpadded snowmaking All of these risks would likely


give rise to liability—or at least significant litigation costs—for ski areas under current Vermont law.


A Proposal to Amend Vermont’s Statute Based on the Michigan Model


In Sunday, Stratton’s voluntary business decision to convert some of its natural ter- rain into hazard-free fairways became the springboard for a broad-sweeping, judge- made rule that every ski area from Jay Peak to Mount Snow should be required to do the same. A statutory scheme based on the Michigan model would extinguish the Sun- day-Frant regime and provide clear, pre- dictable, and substantial liability protec- tions for Vermont ski areas. The following proposed amendments to the sports inju- ry statute incorporate and expand on the Michigan model:


(1) It is the purpose of this Act to elim- inate litigation and litigation-related costs for ski area owners and opera- tors with respect to claims and actions for injuries arising out of certain inher- ent dangers of skiing, and to facilitate the stabilization of an industry which contributes substantially to Vermont’s economy. This Act sets forth the poli- cy of the State with respect to the lia-


www.vtbar.org


bility of ski area owners and operators by affirming the principles of law set forth in Wright v. Mt. Mansfield Lift, Inc., and by establishing certain inher- ent dangers of the sport of skiing as “obvious and necessary” as a matter of law. In Frant v. Haystack Group Inc., the Vermont Supreme Court observed that, “[i]n drafting 12 V.S.A. § 1037, the legislature avoided cataloguing fact-specific examples of ‘obvious and necessary’ risks inhering in sports such as skiing.” The purpose of this Act is to catalogue fact-specific dangers or risks inherent in the sport of skiing to which the doctrine of primary assump- tion of the risk shall apply as a matter of law.


(2) Each person who participates in the sport of skiing or snowboarding accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries or death resulting from: (a) variations in weather, contours or steepness in terrain, trail mergers or trail design;


(b) surface or subsurface snow or ice conditions; (c) bare spots, holes, ruts, rocks, cliffs, trees, roots, stumps, and other forms of natural growth or debris; (d) man-made jumps, half-pipes, ter- rain parks or other artificial skiing or snowboarding structures or surfaces. (e) collisions with other skiers or snow- boarders;


(f) collisions with ski lift towers or their components;


(g) collisions with snow-making equip- ment, systems or their components; (h) collisions with plainly visible snow- grooming equipment;


(i) collisions with plainly visible trail ropes, trail markers, hazard stakes, trail or traffic signage, snow fencing, safety fencing, or lift-line corral sys- tems;


(j) collisions with any other artificial or man-made objects, structures or equipment located on, or in the vicin- ity of, any open and designated trails so long as said dangers are (i) plainly visible to skiers or snowboarders and (ii) serve some purpose or function re- lated to the sport of skiing or snow- boarding, ski or snowboard racing, or the maintenance or operation of any designated trails, open or closed.


(3) For the purpose of this section, a “plainly visible” danger shall be de- fined as a danger that any attentive skier or snowboarder of normal visual acuity would observe from a distance


THE VERMONT BAR JOURNAL • SUMMER 2012 23


Putting Risk Back on the Downhill Edge


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