Utah Bar Journal, January 2010, 10 Volume 23 No. 1
This article marks the thirtieth anniversary of the Utah Legislature’s 1979 enactment of Utah’s Inherent Risks of Skiing Act. See Utah Code Ann. §§ 78B-4-401 to -404 (2009). Since then, national statistical studies tell us that there have been approximately 900 ski/snowboard-related fatalities and over five million ski/snowboard-related injuries. Each year, Utah’s slopes can expect to see about three fatalities and over 10,000 injuries. While the vast majority of these accidents are not actionable, it is nonetheless surprising that the entire body of Utah ski law consists of only a handful of reported cases – in a state which boasts “The Greatest Snow on Earth” and around four million skier visits annually. Despite the scant volume of ski-injury litigation in Utah, the statistics above suggest that many Utah attorneys will confront the issue at some time in their career. This article attempts to provide a general framework in which to understand, evaluate, and advise clients about the slope of Utah ski law.
Downhill ski/snowboard accidents typically fall into one or more of the following five categories:
- Collisions with other skiers/snowboarders, with immovable objects (e.g., trees), or with movable objects (e.g., runaway skis or snowboards);
- Ski lift accidents due to negligent design, maintenance, or operation of the lift, or due to the negligence of other skiers or passengers on the lift;
- Accidents caused by ski area negligence such as failure to mark a known hazard, improper slope maintenance and/or grooming, or inadequate avalanche control;
- Accidents caused by ski instructor negligence, such as leading ski school students into overly challenging terrain or failing to provide safety instructions; and
- Accidents or injuries resulting from faulty equipment, most commonly alpine bindings that fail to release properly.
These categories frequently overlap, providing plaintiffs’ attorneys with multiple possible defendants and theories of recovery for any individual accident.
The Utah Inherent Risks of Skiing Act
In most ski-injury cases, the first question to be asked (usually in the defendant’s motion for summary judgment) is whether the ski area operator enjoys immunity under the Utah Inherent Risks of Skiing Act (the “Skiing Act”). The Skiing Act was passed in 1979 at the behest of ski-industry lobbyists, who feared a wave of litigation against ski area operators following the seminal case of Sunday v. Stratton Corp., 390 A.2d 398, 403 (Vt. 1978) (holding ski area operator liable for injuries sustained by a novice skier who tripped on an obscured piece of undergrowth: “What [the plaintiff] ‘assumes’ is not the risk of injury, but the use of reasonable care on the part of the [ski area operator].”).
The stated purpose of the Skiing Act is to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks. Utah Code Ann. § 78B-4-401. The Skiing Act broadly defines “inherent risks of skiing” as “those dangers or conditions which are an integral part of the sport,” and provides a non-exclusive list of such dangers and conditions (e.g., “variations or steepness in terrain” and “collisions with other skiers”). Id. § 78B-4-402.
Despite what some argue is the “plain language” of the Skiing Act, the Utah Supreme Court held, in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), that the Skiing Act “does
not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers.” Id. at 1044. Rather, the Skiing Act only protects ski area operators from liability in cases where one or more of the enumerated dangers that caused the injury is an “integral aspect of the sport of skiing.” Id. In other words, ski area operators owe the skiing public a duty to exercise ordinary care to mitigate or eliminate the hazards of skiing. However, ski area operators are shielded from liability for injuries resulting from “dangers that skiers wish to confront as essential characteristics of the sport of skiing or hazards that cannot be eliminated by the exercise of ordinary care on the part of the ski area operator.” Id. at 1046-47.
In Clover, the plaintiff was injured at Snowbird Ski Resort when another skier collided with her after jumping over a crest with a steep drop off on the downhill side of the crest. See id. at 1039. Due to the drop off, skiers above the crest could not see skiers below the crest (a condition known as a “blind jump”). See id. The plaintiff sued Snowbird alleging, among other things, that Snowbird was negligent in its design and maintenance of the ski run and in its failure to take reasonable measures to eliminate the hazardous blind jump. See id. The trial court granted Snowbird’s motion for summary judgment, ruling that the plaintiff’s claim was barred by the Skiing Act. See id. at 1043. In reversing that decision, the Utah Supreme Court held that the existence of a blind jump is not an essential characteristic of a ski run, and that the plaintiff could, therefore, recover against Snowbird if she could prove that Snowbird could have prevented the accident through the use of ordinary care. See id. at 1048; see also White v. Deseelhorst, 879 P.2d 1371, 1375 (Utah 1994) (precluding summary judgment in favor of ski area operator where genuine issue of fact existed concerning necessity of signs warning of cat track traversing expert run).
Although the Skiing Act remains a viable defense to ski area liability in many cases, the existence of a pre-injury release does not (at least in recreational skiing accident cases, as opposed to ski racing cases). In Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, the plaintiff, a season pass holder at Snowbird, had signed two separate release and indemnity agreements prior to suffering severe injuries after colliding with a retaining wall camouflaged by a light layer of snow. See id. ¶¶ 3-4. The district court cited these pre-injury releases in granting Snowbird’s motion for summary judgment on the plaintiff’s ordinary negligence claim. See id. ¶ 5. The supreme court reversed, invalidating the pre-injury releases as contrary to the public policy of the state of Utah as expressed in the Skiing Act. See id. ¶ 20. The court stated, “The bargain struck by the [Skiing] Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.” Id. ¶ 16; see also Hawkins v. Peart, 2001 UT 94, ¶ 16, 37 P.3d 1062 (invalidating pre-injury release signed by parent on behalf of minor child).
Interestingly, just two months before deciding Rothstein, the Utah Supreme Court reached the opposite conclusion in upholding a release signed by a plaintiff before he was injured during a skiercross race hosted by Park City Mountain Resort. See Berry v. Greater Park City Co., 2007 UT 87, ¶ 1, 171 P.3d 442. Although Justice Ronald Nehring authored both opinions, his analysis in Berry only tangentially references the public policy rationale of Rothstein, suggesting that rationale does not apply to some ski-related activities, even if the inherent risks of the activity would be covered by the Skiing Act. Justice Nehring stated: “[W]hile the reach of the Act may extend to ski-related activities that fall outside the public policy considerations underlying the adoption of the Act, those activities, like skiercross racing, are nevertheless subject to a separate analysis for the purpose of evaluating the enforceability of pre-injury releases.” Id. ¶ 18. Justice Nehring does not specifically distinguish the facts in Rothstein from the facts in Berry. Thus, while preinjury releases are clearly invalid in simple recreational skiing accident cases, prudent defense practitioners will try to align their facts with Berry in other cases. See also Pearce v. Utah Athletic Foundation, 2008 UT 13, ¶ 21, 179 P.3d 760 (holding that pre-injury release signed by adult bobsled rider is valid and protects operator of public bobsled ride from liability for ordinary negligence); but see Ghionis v. Deer Valley Resort Co., Ltd., 839 F. Supp. 789, 797 (D. Utah 1993) (invalidating pre-injury release of ski area operator for negligence in renting skis with bindings incompatible with plaintiff’s ski boots).
Collisions, both with other skiers/snowboarders and with moveable and immoveable objects, are a common cause of actionable ski/snowboard injuries. Liability for collisions may be imposed upon anyone whose negligence contributed to the collisions, subject to the limitations of the Skiing Act. In Ricci v. Schoultz, 963 P.2d 784 (Utah Ct. App. 1998), the court addressed the standard of care to be applied in skier vs. skier collision cases. See id. at 786-87. On a picture-perfect ski day on an easy run at Snowbird, Ricci was skiing behind and to the left of Schoultz. See id. at 785. As Ricci approached to within a few feet behind Schoultz, Schoultz unexpectedly lost control, and veered left into Ricci who was unable to avoid the collision. See id. Ricci sustained severe injuries. See id. Although the jury found that Schoultz was negligent, the trial judge granted Schoultz’s motion for j.n.o.v. and dismissed the case. See id. The court of appeals affirmed, offering this cursory explanation: “A skier does have a duty to other skiers to ski reasonably and within control.
However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty…. Schoultz’s loss of control and fall, by itself, does not establish his negligence.” Id. at 786-87.
Although the Ricci court tells us that an inadvertent fall does not breach a skier’s duty “to ski reasonably and within control,” id., it unfortunately provides little guidance as to what conduct would breach that duty or what evidence would support a jury’s finding of negligence. However, some language in Ricci suggests that a plaintiff must present evidence that the defendant’s conduct increased the risks of skiing beyond those inherent in the sport. See id. at 786 (quoting Freeman v. Hale, 36 Cal.Rptr.2d 418, 423-24 (Cal. Ct. App. 1994) (noting that defendant had consumed a large quantity of alcohol before colliding with the plaintiff: “‘[W]hile [defendant] did not have a duty to avoid an inadvertent collision…he did have a duty to avoid increasing the risk of such a collision.'”)).
Several types of evidence are frequently available to support a plaintiff’s claim that the defendant’s conduct increased the risks of skiing, including: eyewitness testimony, violation of national and international standards for safe skiing, violation of a safety law, and the testimony of experts in ski safety and/or engineering/accident reconstruction. Eyewitnesses may be identified and their written statements contained in Ski Patrol collision reports. Additional eyewitnesses may sometimes be found among ski area employees (e.g., lift operators, ski instructors, or volunteer mountain hosts who saw the accident) or among other skiers. Ski area records often contain detailed logs possibly revealing the names of potential witnesses who might have seen the accident while riding up a nearby lift or while participating in a ski school class. Evidence that the defendant violated safe skiing standards and or a ski safety law also lends support to the plaintiff’s claim of negligence.
The Skiers Responsibility Code (the “Code”) sets forth the rules of the road which all skiers should obey:
- Always stay in control and be able to stop or avoid other people or objects.
- People ahead of you have the right of way. It is your responsibility to avoid them.
- You must not stop where you obstruct a trail or are not visible from above.
- Whenever starting downhill or merging into a trail, look uphill and yield to others.
- Always use devices to help prevent runaway equipment.
- Observe all posted signs and warnings.
- Keep off closed trails and out of closed areas.
- Prior to using any lift, you must have the knowledge and ability to load, ride, and unload safely.
Other safe-skiing standards can be found in written material published by the National Ski Patrol, the National Ski Areas Association, Professional Ski Instructors of America, and the International Federation of Skiing.
Additionally, many municipalities have recently passed ski-safety laws, such as the following Wasatch County ordinance:
No person shall ski or snowboard in a reckless or negligent manner so as to endanger the life, limb, or property of any person, or so as to display a willful or wanton disregard for other persons or property. The primary duty shall be on the Skier or Snowboarder to avoid collision with any person or object below him. Wasatch County Ordinance No. 08-03(II)(2) (2008).
Although a violation of a safety law does not constitute negligence per se, it will certainly support a claim of negligence under most circumstances. See Hansen v. Eyre, 2005 UT 29, ¶ 12 n.4, 116 P.3d 290 (statutory violation may be considered as evidence of negligence); see also MUJI CV212 Violation of a safety law. “Violation of a safety law is evidence of negligence unless the violation is excused.” MUJI CV212. However, Ricci cautions that the occurrence of a collision, without more, is insufficient to establish a defendant’s negligence simply for failing to avoid the collision. See id. at 786-87.
Ski Lift Accidents
The Utah Passenger Ropeway Systems Act, see Utah Code Ann. § 72-11-101 to -216 (2009) (“Ropeway Act”), declares that It is the policy of the state to:
(a) protect citizens and visitors from unnecessary mechanical hazards in the design, construction, and operation of passenger ropeways, but not from the hazards inherent in the sports of mountaineering, skiing, snowboarding, mountain biking, and hiking, or from the hazards of the area served by passenger ropeways, all of which hazards are assumed by the sportsman.
Id. § 72-11-201. “Passenger ropeways” include, among other things, aerial tramways, chair lifts, and rope tows, see id. § 72-11-102(10), and are not treated as common carriers or public utilities, see id. § 72-11-214(1). Although the stated policy of the Ropeway Act may limit potential liability in ski lift accidents cases, Utah courts have not addressed the issue. Nonetheless, the Ropeway Act does not purport to limit liability for “unnecessary mechanical hazards in the design, construction, and operation of passenger ropeways.” Id. § 72-11-201.
Illustrative of facts that might give rise to liability in Utah are those from the Colorado case of Trigg v. City & County of Denver, 784 F.2d 1058 (10th Cir. 1986). The plaintiff, a beginner skier, was not firmly seated on the chair lift after loading, having partially slipped out of the chair. See id. at 1059. In violation of a state regulation requiring the ski-lift operator to immediately stop a lift in the event of danger, the operator failed to stop the lift until the plaintiff had traveled almost 200 feet from the loading ramp and was dangling 25 feet above the ground. See id. A ski patroller instructed the plaintiff to “point her skis downhill and drop.” See id. The plaintiff suffered serious injuries to both knees when she landed. See id. The Tenth Circuit Court of Appeals held that the jury should have received a negligence-per-se instruction based on the ski lift operator’s alleged regulatory violation. See id. at 1061. Similarly, Utah’s administrative rules implemented pursuant to the Ropeway Act adopt the standards of the American National Standard Institute as the governing standards for the operation and maintenance of passenger ropeways. See Utah Admin. Code R920-50-1(B) (2009). ANSI B77.1-1999 American National Standard for Passenger Ropeways § 18.104.22.168.3 states: “Should a condition develop in which continued operation might endanger a passenger, the attendant shall stop the aerial lift immediately and advise the operator.” Thus, facts similar to those in Trigg may lead to liability in Utah.
In Meese v. Brigham Young University, 639 P.2d 720 (Utah 1981), the Utah Supreme Court addressed the standard of care to be applied in the context of ski equipment rental. See id. at 724-26. In that case, the plaintiff, a student at BYU, was injured when the bindings on skis she rented from the BYU bookstore failed to properly release. See id. at 721. The court held that the BYU bookstore employee, acting as a ski equipment rental agency, had a duty to exercise ordinary care commensurate with industry standards to correctly adjust the bindings and that the employee should have “do[ne] more than to merely fix the tension on the bindings from a chart and that he should have directed plaintiff to at least go through the necessary motions to test the release mechanism of the bindings.” Id. at 723. The court suggests that the same standard of care applies to ski equipment sales. See id. at 722-23 (“Adjustment of the binding to a skier’s need and boots is the responsibility of the agency from which the boots and skis are acquired, whether it be by rental or purchase.”).
With the number of annual skier visits to Utah slopes increasing at an accelerating pace since the 2002 Olympics (approximately 33% more skier visits last year than in the 2001-02 ski season), it is safe to assume that Utah’s courts will confront many more issues relating to the law of skiing in the years ahead. For example:
- Can a ski instructor be held liable for negligent supervision of a child ski student who falls off a chair after loading the lift without any adult supervision?
- What standard of care are ski patrollers and ski-area operators bound to follow in marking and eliminating the risks of an in-bounds avalanche?
- Will a ski patroller be held liable for negligently allowing a reckless skier to continue skiing when the reckless skier subsequently collides with another skier?
These and other questions are likely to arise as Utah ski law continues to evolve.
Content copyright 2009-2011. David Kottler. All rights reserved.
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