Windham Mountain sued over skier's death

ss20 · Oct 2, 2013

HowieT2 said:
Thanks. Appreciate the endorsement. Of course, god forbid something should happen to you or a loved one, and you'll be running to consult said parasites. Who else does the widow turn to when she suddenly loses her husband and is left destitute. I'm sure she's more concerned with putting food on her table and keeping a roof over her head, than whether someone who doesn't even know her, thinks she shouldn't protect her rights. And there is no amount of money that can make up for the loss of a spouse or a father. I'm pretty sure the widow isn't jumping for joy at her good fortune.

what needs to be understood is there is something called a statute of limitations, which in New York is 2 years for wrongful death causes of action. But you can't start an action until a representative is appointed by the surrogates as part of the estate proceedings. the lawyer has to file the lawsuit before the statute runs or be forever barred. And you can't do any real investigation until the representative is appointed. even if there is some doubt whether the claim will ultimately be successful, the suit has to be filed.

that being said, the law is highly favorable to the ski resort. The skier assumes the risk of any hazard inherent in the sport, and the resort is immune from liability. From the little we know, this case has little chance of success. If you take the time to read the statute which is very similar to those in most states, you'll see that the law is pretty generous to the resorts.

hmmm...wonder what your profession is?

skiNEwhere · Oct 2, 2013

First Tracks said:
Many states have skier safety acts, not just Colorado, but just to clarify: those laws don't protect ski areas from lawsuits. Anyone can sue anyone for anything. What the skier safety acts provide is a viable defense to a resort for risks inherent to the sport of skiing. Whether or not the act protects the ski area in a particular case is for a trier of fact to decide, either the judge (in the case of a summary judgment motion) or a jury if the case goes to verdict. Even if the resort wins, indemnification clauses not withstanding, the resort (or more accurately, its insurer) faces legal expenses to defend a case.

If you want to get technical, it does not prevent ski areas from lawsuits, but it does give them a defense against these lawsuits by saying the plaintiff accepted that skiing is inherently a dangerous sport. The Colorado Ski Act contains the following excerpt "'Inherent dangers and risks of skiing' means those dangers or conditions that are part of the sport of skiing, including but not limited to", which works greatly in the ski area's benefit since there is essentially no lateral limit to what falls out the inherit dangers and risks. So yes, you can sue, but this wording making it's much more difficult to prove that their injury was caused outside of the "inherent dangers" of the sport, and actually win their lawsuit.

First Tracks said:
And good luck collecting those fees. You can't get blood from a stone, and in most cases the defendant will agree to waive collecting fees/costs in exchange for the plaintiff agreeing not to appeal.

My point exactly, a classic intimidation tactic. Even if the plaintiff has a case where the defendant might have fell outside of the extremely broad definition of "inherit risks" (like Vail not removing or fixing a broken piece of metal jutting out from a bridge on a marked trail) , the mountain threatens them to pay for legal fees if they lose their case, and in this case, that plaintiff chose not to appeal, but in the end she was still stuck with the medical bill to remove the metal from her leg. It's lose-lose either way, even though the resort MAY have been somewhat liable.

Whether you crash into a tree, or fall into a previously covered toxic fumarole*, the ski area can fall back to the act to cover themselves, even if there was negligence

Being from Utah, had you heard about this ruling?

It stated that ski operators are not at liberty to "use pre-injury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable."

Sounds exactly like what some ski area's have been doing...

*Yes I'm alluding to the incident at Mammoth, and yes, I'm aware that it was the ski patrol affected, not the actual skiers, I'm just making a hypothetical point though

First Tracks · Oct 2, 2013

skiNEwhere said:
If you want to get technical, it does not prevent ski areas from lawsuits, but it does give them a defense against these lawsuits by saying the plaintiff accepted that skiing is inherently a dangerous sport.

That's not a mere technicality, it's an important and relevant fact to this discussion. The bottom line is that resorts are left paying to defend lawsuits, whether frivolous or not. The act does absolutely nothing to eliminate that, as I've described above.

skiNEwhere said:
The Colorado Ski Act contains the following excerpt "'Inherent dangers and risks of skiing' means those dangers or conditions that are part of the sport of skiing, including but not limited to", which works greatly in the ski area's benefit since there is essentially no lateral limit to what falls out the inherit dangers and risks.

That statement is patently false. Losing control and colliding with a stationary object that in any reasonable expectation would be part of a ski resort -- i.e., a tree, a lift tower, another skier, etc. -- is an inherent risk to the sport and the act thus provides a defense (but again, does not prevent lawsuits). Being injured in such a way that the resort could be held to be negligent even if the sport of skiing was not involved -- i.e., being injured when a lift malfunctions due to negligent maintenance -- would not likely result in valid defense for the resort under the act. So yes, there is a limit.

skiNEwhere said:
Even if the plaintiff has a case where the defendant might have fell outside of the extremely broad definition of "inherit risks" (like Vail not removing or fixing a broken piece of metal jutting out from a bridge on a marked trail) , the mountain threatens them to pay for legal fees if they lose their case, and in this case, that plaintiff chose not to appeal, but in the end she was still stuck with the medical bill to remove the metal from her leg. It's lose-lose either way, even though the resort MAY have been somewhat liable.

Is that a real case, or something that you're making up? If it's the former I'd like to review the FindLaw reference, please.

skiNEwhere said:
Whether you crash into a tree, or fall into a previously covered toxic fumarole, the ski area can fall back to the act to cover themselves, even if there was negligence

Again, a patently false statement. How is the resort negligent when a guest loses control and crashes into a tree? The only fumarole example I can recall is the incident at Mammoth Mountain, when a fumarole (a natural geologic feature, not something created by the resort, and something that did not previously exist) opened and a patroller came upon it and died of toxic poisoning. It was subsequently roped off and no guests that I'm aware of were involved in any incidents involving said fumarole, so your fumarole example is purely hypothetical and therefore offers no insight to this discussion.

Why do I feel like I'm eating red herring for dinner tonight?

skiNEwhere said:
Being from Utah, had you heard about this ruling?

Yes, I have. In Rothstein v. Snowbird the Supreme Court Justices made my point enunciated above rather nicely, actually, when they wrote in their decision:

The Act is most clearly not, as Snowbird contends, intended to protect ski area operators by limiting their liability exposure generally. It is rather a statute that is intended to clarify those inherent risks of skiing to which liability will not attach so that ski resort operators may obtain insurance coverage to protect them from those risks that are not inherent to skiing.

And, in fact, contrary to your assertion the Court found that Snowbird's liability release was counter to public policy and therefore not enforceable:

...we hold that the release and indemnify agreements Mr. Rothstein signed per Snowbird's request are contrary to the public policy of this state and are, therefore, unenforceable.

The Supreme Court reversed the trial court's granting of Snowbird's motion for summary judgment, and remanded the case for trial. I'm therefore somewhat perplexed at why you chose to cite Rothstein v. Snowbird to prove your point, as it rather proves the opposite. In Rothstein v. Snowbird, Mr. Rothstein was allowed to take his negligence action against Snowbird to a jury of his peers.

skiNEwhere · Oct 2, 2013

Well this is turning into a completely different thread on ski law, not my intent at all. I'll finish up here.

First Tracks said:
That's not a mere technicality, it's an important and relevant fact to this discussion. The bottom line is that resorts are left paying to defend lawsuits, whether frivolous or not. The act does absolutely nothing to eliminate that, as I've described above.

It does not eliminate it, but if a potential plaintiff feels they have a case and consults a ski lawyer, they will bring this act up, which MAY deter them from suing in the first place. That's what I mean when I said it protects them from lawsuits.

First Tracks said:
Losing control and colliding with a stationary object that in any reasonable expectation would be part of a ski resort -- i.e., a tree, a lift tower, another skier, etc. -- is an inherent risk to the sport and the act thus provides a defense (but again, does not prevent lawsuits). Being injured in such a way that the resort could be held to be negligent even if the sport of skiing was not involved -- i.e., being injured when a lift malfunctions due to negligent maintenance -- would not likely result in valid defense for the resort under the act. So yes, there is a limit.

"Likely" being the key work. Due to the ambiguous wording of the act, ski areas have a lot of leverage and use that ambiguity in there favor. A lift malfunctioning due to negligence is likely the ski area's fault, but due to the wording of the act, they can pressure the victims not to sue.

My main point was in my first post in this thread, to paraphrase, a 13 year old kid was killed by an inbounds avalanche at Vail because while the upper gate was closed, the lower gate was NOT. Is this a resonable expectation? I don't want an answer to that.....I'm not trying to win individual cases, I'm trying to prove that Vail uses the act and the indemification clause to intimidate the mother not to sue, when Vail MAY have been liable.

First Tracks said:
Is that a real case, or something that you're making up? If it's the former I'd like to review the FindLaw reference, please.

Yes

First Tracks said:
Again, a patently false statement. How is the resort negligent when a guest loses control and crashes into a tree? The only fumarole example I can recall is the incident at Mammoth Mountain, when a fumarole that did not exist opened and a patroller came upon it and died of toxic poisoning. It was subsequently roped off and no guests that I'm aware of were involved in any incidents involving said fumarole.

You're missing my comparison between a scenario which the act is intended to cover and "protect" the ski area from liability (skier loses control and crashes into a tree) vs a POTENTIAL scenario where liability is vague, but the ski area can use the act to defend itself and the indemnification clause to intimidate the plaintiff.

FYI, I edited that post 5-10 minutes after I posted it with an "*" stating that I'm aware no skiers were killed in that incident, but ski patrollers instead.

My point.....

Ski area's use this act and indemnification clauses to protect themselves, in clear cut cases of inherent risks such as hitting a tree, but also in cases where they COULD be found liable, but use this to intimidate plaintiffs.

I didn't intend on getting into a full fledged legal debate on a ski forum. If you wish to continue I'm fine with taking it on debate.org

If you're bored, you can rip through the other thread

First Tracks · Oct 2, 2013

skiNEwhere said:
Well this is turning into a completely different thread on ski law, not my intent at all.

Well, you are the one who brought it up before I chimed in, after all.

skiNEwhere said:
First Tracks said:

Being injured in such a way that the resort could be held to be negligent even if the sport of skiing was not involved -- i.e., being injured when a lift malfunctions due to negligent maintenance -- would not likely result in valid defense for the resort under the act.

Click to expand...

"Likely" being the key work. Due to the ambiguous wording of the act, ski areas have a lot of leverage and use that ambiguity in there favor. A lift malfunctioning due to negligence is likely the ski area's fault, but due to the wording of the act, they can pressure the victims not to sue.

The reason that I used the word "likely" is because as anyone is aware, any jury verdict is ultimately a crapshoot. Any attorney who tells you otherwise isn't worth talking to. My use of the word "likely" had nothing to do with any perceived "ambiguity" in Colorado's Skier Safety Act.

skiNEwhere said:
I'm trying to prove that Vail uses the act and the indemification clause to intimidate the mother not to sue, when Vail MAY have been liable.

You call it intimidation, I call it employing a valid legal defense. Any reasonable entity, be that an individual or corporation, is going to employ any viable defense available when confronted -- that's normal. If someone breaks into your home in the middle of the night, do you grab your gun to defend your family, or do you ignore your gun in the drawer because you believe that violence is wrong?

skiNEwhere said:
First Tracks said:

Is that a real case, or something that you're making up? If it's the former I'd like to review the FindLaw reference, please.

Click to expand...

Yes

You earlier wrote, "(like Vail not removing or fixing a broken piece of metal jutting out from a bridge on a marked trail)". Nowhere in the decision on Parsons v. Vail (and yes, I just read it word for word) does it indicate that the bracket in question was a) "broken," or b) "jutting out from the bridge." That appears to be your embellishment -- it may be true or it may not be, but it's not addressed in the cite provided. All it says on point is that, "Plaintiff further alleges she suffered a deep gash to the inside right (sic) of her left knee from an impact with a protruding metal bracket on the skier's left wall of the bridge while her skis remained on and parallel to the wall." In fact, the decision goes on to say, "Defendant challenges the mechanics of the accident and thus, the issue of whether the injury was caused by the bracket remains disputed." Frankly, I find it hard to fathom how you could injure the inside of your knee when the bracket, if broken and protruding, would have to come into contact with the outside of your knee if you collided with it as you were skiing past.

skiNEwhere said:
You're missing my comparison between a scenario which the act is intended to cover and "protect" the ski area from liability (skier loses control and crashes into a tree) vs a POTENTIAL scenario where liability is vague, but the ski area can use the act to defend itself and the indemnification clause to intimidate the plaintiff.

No, I'm not missing your comparison at all. It was in fact you that earlier used the example of striking a tree to show how unjust the ski industry is:

skiNEwhere said:
Whether you crash into a tree, or fall into a previously covered toxic fumarole, the ski area can fall back to the act to cover themselves, even if there was negligence

Now you indicate that a skier losing control and crashing into a tree is "a scenario which the act is intended to cover and 'protect' the ski area from liability." Hmm...I'm confused. :dontknow:

skiNEwhere said:
I didn't intend on getting into a full fledged legal debate on a ski forum

Nor did I, but I wasn't going to let your unsupported generalizations:

skiNEwhere said:
In Colorado, ski areas lobbied successfully to have the "Colorado Ski and Safety Act" created in the late 70's to protect them lawsuits. You can read the whole thing here if you're bored, but in a nutshell it says that skiing is an inherently dangerous sport, and that no matter in what manner you get hurt or killed while skiing, the ski area isn't liable.

...go unchallenged. If you're taking your ball and going home, I guess we're done.

skiNEwhere · Oct 3, 2013

First Tracks said:
No, I'm not missing your comparison at all. It was in fact you that earlier used the example of striking a tree to show how unjust the ski industry is

Yes, you are.

This is what I said

skiNEwhere said:
You're missing my comparison between a scenario which the act is intended to cover and "protect" the ski area from liability (skier loses control and crashes into a tree) vs a POTENTIAL scenario where liability is vague, but the ski area can use the act to defend itself and the indemnification clause to intimidate the plaintiff.

I'll break down what I meant in parenthesis, again.

Whether you crash into a tree (obvious, clear cut example of ski area NOT being liable due to the inherent danger of the sport) or fall into a previously covered toxic fumarole [hypothetical example where liablility is unclear, the ski area can fall back to the act to cover themselves, even if there was negligence (alluding to the toxic fumarole example, depending on the circumstances)]

I don't know where you got the impression I thought this was injust. I used this to make a point that this is what the act IS intended for.

First Tracks said:
You earlier wrote, "(like Vail not removing or fixing a broken piece of metal jutting out from a bridge on a marked trail)". Nowhere in the decision on Parsons v. Vail (and yes, I just read it word for word) does it indicate that the bracket in question was a) broken, or b) jutting out from the bridge. That appears to be your embellishment -- it may be true or it may not be, but it's not addressed in the cite provided. All it says on point is that, "Plaintiff further alleges she suffered a deep gash to the inside right (sic) of her left knee from an impact with a protruding metal bracket on the skier's left wall of the bridge while her skis remained on and parallel to the wall."

Nowhere in there either does it say the size of the bracket....1 inch, 3 inches, 6 inches....If there is anythign inaccurate about what I said, it's that it's a bracket, not a metal rod, because I didn't realize I was on trial yet and needed to paint a perfectly clear picture. Both can cause the same amount of damage, and in this case, she DID get hurt, so you shouldn't be getting hellbent on it being broken or jutting out, it shouldn't have been there regardless, covered up or marked at a minimum though.

First Tracks said:
Nor did I, but I wasn't going to let your unsupported generalizations go unchallenged.

As far as generalization, I figured everyone didn't feel like reading the ski act, so I summarized it, but I included the hyperlink to the source. Unsupported? <sarcasm>You're right I haven't provided a link to a single legitimate source.</sarcasm>

My point was that I felt like ski area's abused the act and the terms in the season pass agrements to have a "valid legal defense" (your terms) Do you have an argument, other than attempting to refute every point I make?

And as far as unsupported generalizations, I have yet to see you find a single source to support your position, whatever that might be.

First Tracks said:
If you're taking your ball and going home, I guess we're done.

No, rather going to a different court (debate.org as stated in my last post)

It needs to be ski season already.......

Gsantollo · Oct 3, 2013

I remember when this happened. It was a sad stretch Windham had 3 in two years I believe. Including one on wedgie that they have since renamed World Cup

Stache · Oct 3, 2013

FWIW and back to the original incident. "Upper Warpath" is, or was, the "Most Difficult" Blue Square on the mountain. Equal in pitch to "Why Not" the "Easiest" Black Diamond. A short steep pitch that many Intermediates tested themselves on before going to a "real" Black Diamond trail. It was often skied off and icy but that still means a skier or snowboarder must stay within their ability, constantly looking ahead and being aware of situations. I can think of no on snow hazard that is not the skier's responsibility to avoid. This includes a jagged piece of metal sticking out in your path or even a snowcat parked around a "blind corner". That said, if there is an incident with a lift, then THAT IS the resorts responsibility, shy of some idiot not sitting still putting the bar down and then falling out of the chair.

Gsantollo · Oct 3, 2013

Warpath isn't as steep as the two sections of why not that get real steep

jack97 · Oct 3, 2013

Stache said:
FWIW and back to the original incident. "Upper Warpath" is, or was, the "Most Difficult" Blue Square on the mountain. Equal in pitch to "Why Not" the "Easiest" Black Diamond. A short steep pitch that many Intermediates tested themselves on before going to a "real" Black Diamond trail. It was often skied off and icy but that still means a skier or snowboarder must stay within their ability, constantly looking ahead and being aware of situations. I can think of no on snow hazard that is not the skier's responsibility to avoid. This includes a jagged piece of metal sticking out in your path or even a snowcat parked around a "blind corner". That said, if there is an incident with a lift, then THAT IS the resorts responsibility, shy of some idiot not sitting still putting the bar down and then falling out of the chair.

http://www.silive.com/northshore/index.ssf/2013/09/staten_island_forensic_experts.html

Here's the article and a hint of what the legal defense is claiming. IMO, what's going to come from this is either higher lift ticket cost or more warning signs on the slopes. Any time you see a sign saying "moguls" on a mogul field, you know what motivated this.

BTW......yes, skiing is a dangerous activity and it is tragic when a death occurs. From my pov, its the choice I made and would not burden others with my choice.

BTW2..... I plan on going skydiving as soon an my daughter is set with college tuition. Again, its my choice and I am aware of the risks and will do what I can to mitigate these risk.

dmc · Oct 3, 2013

skiNEwhere said:
I do not agree with the blanket statement of "there is a special place in hell....."

Too bad... I stand by it...

Smellytele · Oct 3, 2013

dmc said:
Too bad... I stand by it...

I believe there is a special place in hell for any company that sells a service or product and then is negligent with the up keep of their service or product or place of business. I also believe that skiing is a dangerous activity and that sometimes (most of the time) the skier is at fault.

Nick · Oct 3, 2013

jack97 said:
http://www.silive.com/northshore/index.ssf/2013/09/staten_island_forensic_experts.html
BTW2..... I plan on going skydiving as soon an my daughter is set with college tuition. Again, its my choice and I am aware of the risks and will do what I can to mitigate these risk.

I want to go skydiving again. It's been 10 years. SO much fun.

Nick · Oct 3, 2013

Smellytele said:
I believe there is a special place in hell for any company that sells a service or product and then is negligent with the up keep of their service or product or place of business. I also believe that skiing is a dangerous activity and that sometimes (most of the time) the skier is at fault.

I think it's hard to make it a blanket statement but generally speaking I agree. However there is that gray area in all things where responsibility isn't clear.

nomad · Oct 3, 2013

I've skied at Windham... it's about the least dangerous resort I've been to. It is certainly a beginner ski area, and beginners need to understand their limits - especially once they start to 'improve'. I'm guessing this guy thought he was hot shit on that tiny hill and messed up as a result. People need to be responsible for themselves.

Smellytele · Oct 3, 2013

Nick said:
I think it's hard to make it a blanket statement but generally speaking I agree. However there is that gray area in all things where responsibility isn't clear.

Hit a tree my fault. Chair lift falls to the ground ski area's fault. I fall on a mogul run - my fault. I hit a cable or chunk of metal under the snow and wipe out - ski areas fault.

dmc · Oct 3, 2013

Smellytele said:
Hit a tree my fault. Chair lift falls to the ground ski area's fault. I fall on a mogul run - my fault. I hit a cable or chunk of metal under the snow and wipe out - ski areas fault.

fair enough..
But I still say that anyone that sues a ski area because they suck or made a mistake - deserves a special place in hell...

Smellytele · Oct 3, 2013

dmc said:
fair enough..
But I still say that anyone that sues a ski area because they suck or made a mistake - deserves a special place in hell...

Agreed

deadheadskier · Oct 3, 2013

Yeah, there are only a few situations where I'd personally sue. I've had a couple of close calls with mountain employees driving snowmobiles recklessly. If a collision had occurred due to that recklessness, I'd want some compensation if I were injured.

dmc, why was your buddy banned from Hunter? I don't think banning someone due to a lawsuit is right.

dmc · Oct 3, 2013

deadheadskier said:
dmc, why was your buddy banned from Hunter? I don't think banning someone due to a lawsuit is right.

I think sometimes ski areas settle out of court and tell people to stay away as part of the "out of court" deal...

I don't press people to understand how Hunter handles this kind of thing...

He's not even remotely my "buddy" anymore... He's shunned by all of us...

Windham Mountain sued over skier's death

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