of fifty (50) feet in clear weather con- ditions. The presence of fog or other inclement weather affecting general visibility shall not be considered in de- termining whether a particular danger is plainly visible within the meaning of this section.
(4) All of the aforesaid dangers shall be deemed obvious and necessary notwithstanding
improvements equipment, or
advancements in technology, or the availability or feasibility of alternative technology,
placement,
structures, measures, methods or de- signs.
(5) In all civil actions brought against ski area owners or operators arising out of skiing or snowboarding-related injuries, the plaintiff shall have the bur- den of proving that the casual mecha- nism of injury or death is not among the aforesaid obvious and necessary dangers which all skiers and snow- boarders assume as a matter of law.
(6) In construing the provisions of this Act, the rule of law that statutes in derogation of the common law are to be strictly construed shall not be ap- plied. The provisions of this Act shall be so interpreted and construed as to effectuate its stated purpose.
An amended “delineated risk” stat-
negligent construction or main- tenance of the facilities themselves, negli- gent provision and adjustment of rental equipment, negligent instruction or super- vision of ski school attendees, and the like.
Conclusion
A carefully crafted ski liability statute based on the Michigan model would return the sport of skiing to its proper place where adventure, risk, and personal responsibility converge. It would also serve to drastical-
24
ute along these lines would allocate ski- ing risks in a fair, reasonable, and adminis- trable manner. Skiers would assume those risks that most detached observers would recognize as inherent to the sport. These risks include injuries resulting from natu- ral hazards, skier-to-skier collisions, and all artificial hazards that (1) serve a skiing-re- lated function and (2) are plainly visible to skiers. For their part, ski areas would owe a common-law duty of reasonable care to keep the slopes free of artificial hazards that are either not plainly visible to skiers or serve no skiing-related purpose. And, of course, ski resorts would continue to face traditional tort liability for a host of other losses, including injuries caused by negli- gent installation, operation or maintenance of ski lifts,63
ly reduce liability insurance premiums and uninsured litigation costs for an industry that is critical to the state’s economic vital- ity and is perennially beset by oppressive operating expenses. Although Sunday still reigns supreme,
Vermont ski areas have renewed reason to believe the legislative solicitude that inspired the sports injury statute has not waned over the last thirty years. Toward the end of the dispiriting 2011-12 ski season, the legislature designated skiing and snow- boarding as the official winter sports of Ver- mont. The act references Vermont’s rank- ing as the “the third largest ski and snow- board state,” and recognizes that “both sports are a critical part of our state’s econ- omy, heritage, and way of life.”64
It chron-
icles many “historical Vermont firsts in the ski industry,” beginning with the country’s first lift-served ski area on Clinton Gilbert’s Woodstock farm in 1934, and it rattles off several impressive historical accolades that firmly establish Vermont as the birthplace and enduring icon of American skiing and snowboarding.65 The legislature’s declaration of skiing and snowboarding as Vermont’s official winter sports is a laudable gesture, but symbolic legislation of this sort only goes so far. America’s original ski state can do more to better serve the eighteen ski areas that comprise an indispensable part of its economy. Three decades under Sunday’s thumb is enough. The time has come to put the inherent risks of skiing back on the downhill edge and give ski areas the finan- cial breathing space they need to brave the daunting environmental challenges that lie ahead.
____________________ Andrew A. Beerworth, Esq., is a litiga- tion attorney in the Burlington firm of Paul Frank + Collins, P.C. He can be reached at
abeerworth@pfclaw.com.
____________________ 1
visited April 15, 2012) 2
3 136 Vt. 293 (1978).
See, e.g., Lamson v. American Axe & Tool Co., 58 N.E. 585 (Mass.1900); Murphy v. Steeple-
chase Amusement Co., 166 N.E. 173 (N.Y.1929). 4
5 6 7 8 9
Murphy, 166 N.E. at 174. Id. Id.
96
F.Supp. 786 (D.Vt.1951). 420
F.Supp.781 (D.Vt.1976). Id. at 787, n. 2
10 Sunday, 136 Vt. at 297-98. 11
12 13 14 15
Id. at 297-305. Id. at 297.
Id. at 299-300. Id. at 298-299. Id. at 300.
16 Eric A. Feldman & Alison Stein, Assuming the Risk: Tort Law, Policy, and Politics on the Slippery
Slopes, 59 DEPAUL L. REV. 259, 275 (2010). 17
Injuries, 49 INS. COUNS.J. 36, 42 (1982). 18
19 Id. at 276. THE VERMONT BAR JOURNAL • SUMMER 2012
www.vtbar.org
John E. Fagen, Ski Area Liability For Downhill Feldman & Stein, supra note 16, at 277.
http://www.wcax.com/story/16963056/mak- ing-sense-of-this-years-tragic-skiing-deaths (last
20
1117 (D.Vt.1992). 21
22
Dillworth v. Gambardella, 970 F.2d 1113, 12 V.S.A. §1037.
119, Adj. Sess., § 2). 23
24 25 26
Id.
27 818
F.Supp. 80 (D.Vt.1993). 28
Id. at 300. Id. at 83.
29
(1994). 30
31 32 33 34 35
Frant v. Haystack Group, Inc., 162 Vt. 11 Id. at 13.
Id. at 20-21. Id. at 13. Id. at 21.
Id. at 18 (quoting Dillworth, 970 F.2d at 1119). Id. at 20-21.
36 Feldman & Stein, supra note 16, at 285. 37
Dalury v. S-K-I, Ltd., 164 Vt. 329 (1995) (invali- dating liability release signed by recreational ski- er); Spencer v. Killington, Ltd., 167 Vt. 137 (1997) (invalidating release signed by amateur ski rac-
er). 38
(N.D.1996). 39
42
Bouchard v. Johnson, 555 N.W.2d 81, 85 Murphy, 166 N.E. at 174.
40 Sunday, 136 Vt. at 300. 41 Spencer, 167 Vt. at 142.
NSAA 2005/06 Ski Resort Industry Research Compendium, at 9 (reporting that Northeastern ski areas experienced a 4.0 % decline in gross revenue during the 2005/06 season whereas the industry as a whole experienced a 5.7 % increase
in average gross revenue). 43
44
MONT 100 (2010). 45
Sunday, 136 Vt. at 298. JEREMY K. DAVIS, LOST SKI AREAS OF SOUTHERN VER-
Arthur N. Frakt & Janna S. Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 IDAHO L.
REV. 227, 249 (1992). 46
48
49 946 F.2d 895 (6th 50
51 52
Id. Id. Id.
53 664 N.W.2d 756 (Mich.2003). 54
55 56 57 58
Id. at 760. Id. Id.
2009 WL 5215758 (E.D.Wis.2009). Id.
59 Danieley v. Goldmine Ski Assocs., 266 Cal. Id.
Rptr. 749, 756 (Cal.Ct.App.1990). 60
61 Connelly v. Mammoth Mountain Ski Area, 45 Feldman & Stein, supra note 16, at 295-96.
Cal.Rptr.2d 855, 857-58 (Cal.Ct.App.1995). 62
63 No skier assumes the risk of being injured or
killed by derailed lifts. The Ski Tramways Act, enacted in 1961, requires the Passenger Tram- way Division of the Department of Labor to con- duct annual inspections of every operating ski lift within the state. 31 V.S.A. §§ 701-712. The in- spection program is funded directly by ski areas and fees are determined by the lineal footage of
lifts at each area. 64
65
2012 Vt.
Pub.L.No. 77 (H.365). Id.
Mich. Comp. Laws § 408.342(2). 47 428 N.W.2d 742 (Mich.App.1988). Id. at 744.
Cir.1991).
Id. (Legislative Intent) (quoting 1977, No. Sunday, 136 Vt. at 298. Id. at 299.
Putting Risk Back on the Downhill Edge
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