Ski Sundown Lawsuit

[drjeff]

His lawsuit will be a loser. No way to win. He didn't hit any structures that were negligently left on the trail. It doesn't appear that he is alleging that the jump was too close to the side of the trail or a tree or other obstruction. It says he landed on his head! So, any of the other claims in the article regarding crowded slopes has no bearing since he didn't collide with another skier or object...he landed on his head.

This is why there is insurance. To pay for defense costs for claims such as this one...and to pay out legitimate losses. It is a farce, if people believe insurance companies are going to lower premiums if there are tort reform laws.

99% of the time, that should be true. The wildcard often is what happens when the case is heard before a jury of one's peers. Often the sympathy factor comes into play. And the jury ends up weighing the descision of legal liability vs. human empathy - could be a factor in this case as the jury probably got to look at someone in their early 20's who is wheelchair bound in all likelyhood for the rest of his life.

There's nothing wrong with empathy/emotion, but often times it can really cloud one's ability to objectively follow the instructions of the court

 

[mister moose]

This is one jury I wish I was on.

At 15, you can assert that Malaguit was old enough to recognize that electing to take the jump was his choice, that skiing without a helmet was his choice, that he had no training to prepare him for the dangers that existed. Yet at some point a child is not capable of making those decisions. What age is that? And how do you insure young children aren't lured into dangerous terrain on a ski resort? What if an adult skier is illiterate or non english speaking and can't read the warning signs? Where should the signs be placed? How large should the signs be? These questions need to be addressed by the industry.

Skiing by its very nature is dangerous. It is impossible to eliminate the risk of injury. There is an assumption of this risk by all participants, and it is written out for you on the back of your ticket. The only way to eliminate all risk is to eliminate the sport, and that is silly.

I'd like to see an industry association put out a pamphlet on skiing/riding safety. It would discuss parental supervision, parental assumption of risk (ie the parent is responsible for the child's actions), skiing within your ability, the code, special safety concerns about the trees, out of bounds, and terrain parks. The back of your ticket would refer to it, and all ticket windows would have the pamphlet available, and signs directing you to read it. All resorts websites would have a safety tab, and would link to nationwide or region wide web page on safety. The language would be short, concise, and plain english. All this is to better inform the future Darwin candidate public, and insulate the resorts from their lawyers.

This would create an industry wide standard against which cases like this would be measured. Parents couldn't claim they weren't notified. There would be an industry wide accepted standard that resort defendants could point at to show that they exercised an industry standard level of care and concern in signage, terrain park design, grooming, care, etc.

The recent trend toward "extreme skiing", higher and more complicated aerials, more Olympic coverage of massive superpipe spins, more tree skiing, terrain parks, off piste skiing and film clips of hucking cliffs all create the need to inform young minds that you can get hurt doing these activities. Seriously hurt. A TV ad that makes it look cool and easy to do doesn't mean you should go out and try it without some training and experience.

I'm glad the sport has diversified and created more excitement and interest. The industry needs to keep their safety practices one step ahead of abusive lawsuits, not water down the excitement and fun. Because that's the product they are selling us, excitement and fun.

Not that gross negligence by any resort shouldn't result in losing a lawsuit. But from reading the article, the was no gross negligence indicated.

 

[marcski]

99% of the time, that should be true. The wildcard often is what happens when the case is heard before a jury of one's peers. Often the sympathy factor comes into play. And the jury ends up weighing the descision of legal liability vs. human empathy - could be a factor in this case as the jury probably got to look at someone in their early 20's who is wheelchair bound in all likelyhood for the rest of his life.

There's nothing wrong with empathy/emotion, but often times it can really cloud one's ability to objectively follow the instructions of the court

I'd venture to say that few if any lawsuits against ski areas result in any award to the plaintiff. Again, unless you're talking about collisions with objects or machinery negligently left on an open trail or other structural defects, such as lifts.

 

[deadheadskier]

There's a special place in hell for those that sue ski areas...

I'm not sure I 100% agree with this.

Do I think the kid will / should win his case. No.

That said, I can sympathize with the family for trying to offset what I'm sure are huge costs for his care. I don't think anyone can say exactly what they'd do if facing a similar situation until they are in it. Life is a struggle for most financially while in good health. Trying to ease that burden during a far more difficult situation is somewhat understandable.

There's a guy in Stowe, VT who paralyzed himself in a skiing accident. He's got a sweeping estate with horse farm, right on route 100 just north of the Shaws in town. Goes out to eat regularly at the nicest restuarants in town, 24 hour nurse care, I've had friends who have been the caretaker on his property. He lives a level of luxury I'll never know. Of course I'm sure he'd trade places with me in a second. I certainly wouldn't trade places with him. The accident and settlement came in the 80s. Liability protection for ski areas is much better now than it was then. Still because of that case, I'm sure lawyers still feel they can secure similar rewards for those involved in accidents today.

 

[dmc]

I'm not sure I 100% agree with this.

Do I think the kid will / should win his case. No.

That said, I can sympathize with the family for trying to offset what I'm sure are huge costs for his care. I don't think anyone can say exactly what they'd do if facing a similar situation until they are in it. Life is a struggle for most financially while in good health. Trying to ease that burden during a far more difficult situation is somewhat understandable.

Sure I feel bad for families and can understand the desperation to try to offset the cost of care.. But - one bad lawsuit could put a small ski area under.

I hurt myself while uninsured once snowboarding... It cost $1000 for Dr's - Xrays - RX...
I had to delay my rent - and missed working... But I didn't sue the ski area..

Most of these cases are wrong..

 

[neil]

I'd like to know more details on how this guy actually managed to land on his head. I'm going to guess he was attempting a straight air, freaked out by how high he was and leaned back causing him to over-rotate and land on his head.

 

[Glenn]

I feel bad he was hurt. But he assumed the risk by hitting the jump.

We all take a risk when hitting the slopes...it's part of the sport. Hell, we all take a risk driving to work every morning...

 

[legalskier]

That article raises more questions than it answers for me. I'm trying to figure out what legal theory he's advancing; usually it's negligence primarily, with additional claims tacked on (breach of contract, etc) So as a service to the board and knowing how much Sundown is cherished here, I searched around and found another article that says "he and his mother...blame the ski facility for allowing access to the dangerous jump." Kind of vague, but it might get at the signage question Carrie mentioned...except I'm thinking his argument may be that, even though there may have been signage at the top (beginning) of the trail, there was none at the point where he entered it when he "crossed over" to that trail from another on February 17, 2006. Here's the link with a pic of him: http://www.rep-am.com/articles/2010/09/29/news/local/510530.txt

Is this a winning argument? No idea, but it's gotten him this far. The case has made it to a courtroom and is being presented to a jury, which means it has survived pre-trial challenges for dismissal.

 

[Puck it]

I feel sorry for the guy, but this is problem in this country. We do not take reponsibility for our actions. It has taken some time for the ski industry here to allow jumps, glades and other things. We need to adopt more of the French policy when it comes to this. The French have at least gotten that thing right.

 

[legalskier]

Here's a statement of the law of Ct. in this area. I haven't corroborated its accuracy; I've only so much time in a day:

A recent Connecticut Superior Court decision discussed the state’s law concerning the liability of ski resort operators. Although liability waivers can be difficult to enforce in Connecticut courts, the Connecticut General Assembly has enacted measures to protect ski resort operators.

Connecticut General Statutes Section 29-212(b) provides as follows:
Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to:
(1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations;
(2) bare spots which do not require the closing of the trail or slope;
(3) conspicuously placed or, if not so placed, conspicuously marked lift towers;
(4) trees or other objects not within the confines of the trail or slope;
(5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and
(6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.

Skiing is treated differently than other pursuits as it is inherently dangerous by nature – and in Connecticut, by statute. Therefore, skiers assume virtually all of the risks “caused by the hazards inherent in the sport.” Trail conditions, objects located off the trails, lift towers, collisions with other persons and other undefined conditions are considered inherent dangers.
The statute provides an exception to the assumption of the risk rule for collisions with ”on-duty employees of the ski area operator.” The case of Kearns v. Ski Sundown, Inc., 2009 WL 3739414 (Conn.Super. 2009), discussed that the wording of the statute – excluding “on duty employers” – does not necessarily protect resorts from acts of non-employee agents, such as volunteers. (The court’s discussion came within the plaintiff’s Motion to Strike the defendant’s Special Defense. The case has yet to be decided on the merits).
Of course this statute doesn’t preclude plaintiffs from attempting to make arguments that their clients’ injuries were caused by events not inherent to the sport. But compared to the analysis under a standard liability waiver, a plaintiff suing a ski resort faces a much higher burden.
http://ctsportslaw.com/2010/03/01/connecticut-ski-resort-liability/

(I highlighted some pertinent language in bold type.)

He may be arguing that he didn't assume the risk because such jumps aren't part of normal "snow grooming" and thus aren't "inherent to the sport," but I'm speculating.

 

[neil]

From reading that newspaper article there is no way he wins this because it says:

"Malaguit, 15, had spotted a jump on his way up the triple chair and decided to try it on his third run down the mountain"

Seems like it was his decision to take the jump, and he'd seen the jump in its entirety. It's not like he had crossed over a trail that had a jump that he hit without being aware of it.

 

[legalskier]

Not prepared, no experience, no helmet. I'm sure that they had the standard "look before you jump" signage warning skiers and riders not to try these park features unless they have experience/knowledge.
The guy was probably looking for a settlement and the insurance company said, "no way. See you in Court!"

!. Good point. In a negligence action a jury can consider "contributory negligence" on the part of the plaintiff, which would reduce the ultimate award, if any. Please note, though, that he has to get his case past a motion to dismiss after he rests his case, i.e. the judge could throw it out after they present their proofs.

2. Yes indeed, the insurance company did say that or something close.

 

[bobbutts]

I'd venture to say that few if any lawsuits against ski areas result in any award to the plaintiff. Again, unless you're talking about collisions with objects or machinery negligently left on an open trail or other structural defects, such as lifts.

Yeah I had an experience on time at Killington in the 90's where an employee was going very fast on a snowmobile, lost control and fell off sending the snowmobile careening at me and my future wife. Scared the crap out of us, but luckily rolled by harmlessly. If either of us had been injured there no doubt we'd have sued K and not felt guilty about doing it.

To me the Sundown case is clearly bogus, but like DHS I can sympathize somewhat with why he's suing. He's probably broke and paralyzed and this is probably his only chance at not bankrupting his family with medical bills. If my life and family's finance were on the line I'm not really sure I'd be able to do the right thing either.

 

[dmc]

To me the Sundown case is clearly bogus, but like DHS I can sympathize somewhat with why he's suing. He's probably broke and paralyzed and this is probably his only chance at not bankrupting his family with medical bills. If my life and family's finance were on the line I'm not really sure I'd be able to do the right thing either.

I also wonder if it's the insurance company suing..

 

[legalskier]

Question: Is there any way for the ski area to recover the costs of their defense?

Those costs generally are covered by the insurance carrier.

 

[legalskier]

The wildcard often is what happens when the case is heard before a jury of one's peers. Often the sympathy factor comes into play. And the jury ends up weighing the descision of legal liability vs. human empathy - could be a factor in this case as the jury probably got to look at someone in their early 20's who is wheelchair bound in all likelyhood for the rest of his life. There's nothing wrong with empathy/emotion, but often times it can really cloud one's ability to objectively follow the instructions of the court

Mos def, that is the wild card. Let's hope Sundown's attorney not only is experienced in the mechanics of trial (I'm thinking she or he must be), but also relates well to the jury. That wild card you mention is a challenge for her/him.

 

[legalskier]

The only ones who really benefit are the lawyers.

Disagree there Brian.

 

[bvibert]

Those costs generally are covered by the insurance carrier.

Why does everyone always think the insurance money is free money? If the insurance company has to pay out they are going to cover their losses by raising rates, and not necessarily just for the one ski area being sued.

 

[bvibert]

Disagree there Brian.

Who else benefits from a case like this? It's just a burden on the ski area to have to defend themselves. The plaintiff likely won't see any money. The consumers ultimately have to pay more as insurance costs go higher and higher. Who else other than the lawyers are making out??

 

[legalskier]

I feel bad for the guy, but sometimes shit happens.:

So do I. A ski buddy/colleague of mine suffered a catastrophic injury 27 years ago at Suicide Six. Weird thing was, he was on the easiest trail near the end ("Easy Mile" or something). He was revived lying next to a tree at the trailside. No one witnessed it and he couldn't remember anything. Weeks later he returned as a paraplegic in a wheelchair. Really sad; he was a pisser to ski with. It never held him back though. He raises champion dogs now. He never sued SS, never spoke badly of them. He's a lawyer.

Btw, his GF still married him, what an angel. :beer:

GTGN