FYI: NY Court Bars Skier's Lawsuit

[SIKSKIER]

Forcing the Plaintiff to pay the Defendant's costs in civil cases is dangerous, imo, because of the potential chilling effect it would have on certain plaintiffs (poor, uneducated, socio-economically disadvantaged minorities, poorly-compensated women, etc...) access to the justice system.
I know other jurisdictions have loser-pays rules for attorney fees and costs, but then again there is not really another country out there that has the USA's combination of racial, cultural, and economic diversity tied to a country of our size.

Agreed.The loser-pays rule should apply to the plaintiff's lawyers paying the fees on frivalous cases.

 

[mondeo]

Since he was a minor, I agree with you guys that this was probably a parent-motivated law suit, and that those parents are probably not skiers.

Possibly parent-motivated, but how many kids start skiing at 4 if their parents aren't skiers? I'd bet the parents never did rails, though. In fact I'd bet they were strict cruiser parent(s), who never actually took any risks.

That or they just have a "nothing bad happens to me unless it's someone else's fault" mentality. Like "I'm an expert skier, I wouldn't have gotten injured if your terrain park was done correctly."

 

[jaywbigred]

This was an appeal from the Appellate Division 3rd Department. In New York, a party aggrieved by an Order from the Supreme Court has an absolute right to have an appeal heard in the Appellate Division. One need only file a Notice of Appeal. It's not until you reach the Court of Appeals, the State's highest Court, where you need "permission" to appeal.

Hahaha, you have jogged my memory from first year of law school (in Ohio).

The Prof. was teaching us about the different state court systems and structures "Generally...xyz....except in NY, where the names are all-sorts of messed up. They even call their Supreme Court the Court of Appeals, and the LOWER court the Appellate Division."

I think he is referring to the fact that summary judgment was not granted...

I wasn't necessarily, but given that it was an automatic appeal (had to be heard), then the lack of Summary Judgment at trial is second-best evidence of non-frivolity, imo.

Agreed.The loser-pays rule should apply to the plaintiff's lawyers paying the fees on frivalous cases.

/fixed. If that's what you meant, I agree with you. Once the case meets the standard of frivolous, the plaintiff's attorney should share the burden of the fines and fees.

Possibly parent-motivated, but how many kids start skiing at 4 if their parents aren't skiers?

I didn't think of that. V. Good point!

I'd bet the parents never did rails, though. In fact I'd bet they were strict cruiser parent(s), who never actually took any risks.

Moral of the story: ski bumps and you/your kids won't become litigious! OH mogul threadjack!

 

[ComeBackMudPuddles]

Might have been a more interesting case if there were, in fact, industry standards that practiced the placing of skirting on rails.

precisely.

but, even if there isn't an industry standard, you might reasonably argue that there *should* be one. doesn't seem like what happened to the kid is that far out of the realm of possibilities, and it seems that ski resorts could take minimal steps to reduce such obvious risks.

that is why i'd be hard-pressed to say the suit was frivilous.

then again, i'm pretty pro-plaintiff when it comes to injuries.

 

[Warp Daddy]

Skiing for 14 years...and no idea you could get hurt on a rail. They should have to pay a fine for wasting court time and resources.

Yep and the SCARY thing is these people ARE allowed to BREED

 

[SKidds]

.........but, even if there isn't an industry standard, you might reasonably argue that there *should* be one. doesn't seem like what happened to the kid is that far out of the realm of possibilities, and it seems that ski resorts could take minimal steps to reduce such obvious risks.

And where does the insanity stop, once you start covering up every "obvious" risk? Trees, those are an obvious risk....you could slide into one if you fall near the edge of a trail. Better cusion all of those!

 

[mondeo]

but, even if there isn't an industry standard, you might reasonably argue that there *should* be one. doesn't seem like what happened to the kid is that far out of the realm of possibilities, and it seems that ski resorts could take minimal steps to reduce such obvious risks.

+1

I'm anti gold-digging plaintiff, but what would made sense here is bringing a suit and then settling out of court for medical costs and putting skirting on the rails at the mountain. That probably would've been somewhat fair, and would the push the industry towards standardizing skirts.

 

[mondeo]

And where does the insanity stop, once you start covering up every "obvious" risk? Trees, those are an obvious risk....you could slide into one if you fall near the edge of a trail. Better cusion all of those!

Combination of minimal steps and obvious risk. Like inspecting lift cables for rust. Skirting probably costs about $10/rail. Why not do it?

 

[jarrodski]

Combination of minimal steps and obvious risk. Like inspecting lift cables for rust. Skirting probably costs about $10/rail. Why not do it?

uvresistant HDPE is $135 and up for a 4 foot by 8 foot sheet @ 3/8 thickness.

however, you'll notice a trend since this began in 05...

 

[SKidds]

Combination of minimal steps and obvious risk.

And a "standard" like that is a quagmire of interpretations and opinions. And in their defense I doubt a resort wants to stand up in court and say "we took steps to minimize this obvious risk because it only cost $Y, but we deemed that spending $Yx2 to minimize this other obvious risk was too much"......nor should they have to do so.

 

[bigbog]

...he's just a chip off the old block...

...pretty easy to rant when you read of these cases..

 

[mondeo]

uvresistant HDPE is $135 and up for a 4 foot by 8 foot sheet @ 3/8 thickness.

however, you'll notice a trend since this began in 05...

I stand corrected. I was thinking that since you only need it as a fairly light guide to keep stray body parts out from under the rail, you could get away with something cheaper.

And a "standard" like that is a quagmire of interpretations and opinions. And in their defense I doubt a resort wants to stand up in court and say "we took steps to minimize this obvious risk because it only cost $Y, but we deemed that spending $Yx2 to minimize this other obvious risk was too much"......nor should they have to do so.

You just need a halfway decent cost-benefit analysis, which should be done anyways.
Suppose (All numbers SWAGs):
If it costs, say, $5K for skirting for all rails, replaced every 5 years, then $1K per year for skirting. Then a 2% chance per year of a fracture or more serious injury. Fractures make up 80% of injuries at a cost of $5K each, taking into account treatment, rehab, sick time at work, etc. 18% are ligaments, $15K each. Remaining 2% severe head trauma. And so on. Factor in risks of court costs, settlements, etc. Come up with the anticipated cost of doing nothing. In most cases it'll be pretty clear cut. My guess is the remote chance but massive cost of severe head trauma easily outweighs the cost of skirting.

If you just say, "they should protect against reasonable risks" or "where does it end?" you never get anywhere. There's a line, and the only real way to determine where that line is is to balance the cost of doing nothing against the cost of doing something.

 

[SKidds]

If it costs, say, $5K for skirting for all rails, replaced every 5 years, then $1K per year for skirting. Then a 2% chance per year of a fracture or more serious injury. Fractures make up 80% of injuries at a cost of $5K each, taking into account treatment, rehab, sick time at work, etc. 18% are ligaments, $15K each. Remaining 2% severe head trauma. And so on. Factor in risks of court costs, settlements, etc. Come up with the anticipated cost of doing nothing. In most cases it'll be pretty clear cut. My guess is the remote chance but massive cost of severe head trauma easily outweighs the cost of skirting.

I fear that having resorts make decisions on such a basis will unduly shift liability to the resorts. Now they can state that skiers are responsible for themselves given the inherent risks in the sport. As in the case referenced, it never made it as far as a trial to see if the resort was liable because the issue is made moot by the courts. It was an obvious, inherent risk, and the skier's reponsibility to avoid it, or to paying his own medical costs if he does not.

If resorts are forced to analyze every risk from a cost benefit analysis, something like the above case has could go from an inherent risk that is the skiers responsibility, to a risk specifically recognized and analyzed by the resort that they chose not (in the court case the complaint will read: failed) to do anything about, thereby resulting in the skier's injury because had they done something about the risk they recognized and analyzed he wouldn't have been hurt. Not only does it seem like it could shift the perceived responsibility/liability, if it gets to a jury and they see little Johnny in his wheel chair because the big bad resort's cost benefit analysis deemed that $10,000 was too much to spend to spare Johnny life as a quadraplegic.......guess who's gonna win?

Yes, I'm being a little extreme I guess, but once you head down the slippery slope......... Also, I'm not saying that resorts should do nothing regarding risks to the general skier popoulation. But to force them to analyze every one on a cost-benefit basis? If I'm a resort owner or their lawyer, I don't want any part of it. I think most resorts are good corporate citizens to begin with and do their best to address major risks, but to force them to analyze each and every potential risk puts too much on them. Egads! You'll bankrupt the industry man!!!

 

[mondeo]

I was looking at it more from the decision making end than the legal CYA end. One of the potential costs analyzed is the costs of lawsuits and possible judgements/settlements. Some cases don't need more than a 5 minute SWAG, others may take thorough studies. And then if you do get sued, you still know you made the right decision.

 

[jaywbigred]

I fear that having resorts make decisions on such a basis will unduly shift liability to the resorts. Now they can state that skiers are responsible for themselves given the inherent risks in the sport. As in the case referenced, it never made it as far as a trial to see if the resort was liable because the issue is made moot by the courts. It was an obvious, inherent risk, and the skier's reponsibility to avoid it, or to paying his own medical costs if he does not.

If resorts are forced to analyze every risk from a cost benefit analysis, something like the above case has could go from an inherent risk that is the skiers responsibility, to a risk specifically recognized and analyzed by the resort that they chose not (in the court case the complaint will read: failed) to do anything about, thereby resulting in the skier's injury because had they done something about the risk they recognized and analyzed he wouldn't have been hurt. Not only does it seem like it could shift the perceived responsibility/liability, if it gets to a jury and they see little Johnny in his wheel chair because the big bad resort's cost benefit analysis deemed that $10,000 was too much to spend to spare Johnny life as a quadraplegic.......guess who's gonna win?

Yes, I'm being a little extreme I guess, but once you head down the slippery slope......... Also, I'm not saying that resorts should do nothing regarding risks to the general skier popoulation. But to force them to analyze every one on a cost-benefit basis? If I'm a resort owner or their lawyer, I don't want any part of it. I think most resorts are good corporate citizens to begin with and do their best to address major risks, but to force them to analyze each and every potential risk puts too much on them. Egads! You'll bankrupt the industry man!!!

But what your describing is a sort of intentional, willful blindness. I do not see how refraining from doing the cost/benefit analysis would somehow exculpate the resort from liability if a court were to find a potential risk rose above the litany of risks covered by the doctrine of primary assumption of risk. In that situation, I think it matters not whether a cost benefit analysis was completed. In other words, you are talking about a a risk, let's call it SUPER RISK, because it rises above the many risks covered by the doctrine of primary assumption of risk. To a court or a jury, which is worse? A Resort that examined SUPER RISK and deemed that the expense in nullifying it out weighed the potential risk it posed? Or a resort that quietly kept its head under the covers and did not look into the risk at all?

To me, the willfully blind resort poses more of a threat the skiing community at large, and as a juror or judge I'd be more inclined to want to punish them for such irresponsibility. I would have more remorse for a resort that identifies its risks, is proactive in remedying those risks which it can afford to protect against, and perhaps fails to protect against a borderline risk eventually found to be a SUPER RISK.

Its not like every resort in the world must run its own individual cost benefit analysis on each risk. The courts pay strong deference to industry standards (as in this case) for a reason. I would guess that generally the big guys who can afford the analysis will lead the way, and the little guys pretty much just have to follow suit. The cost, therefore, is appropriately born by those who can afford it most.

Lastly, even though we all love the services mountains provide, you have to try not to let that cloud your thinking. A non-skiing court must correctly label a ski mountain for what it is: a for profit venture, who holds its doors open to the public to come skiing in an attempt to make money off of that public. Just because the industry is hurting, or the profit margin is not what it once was, does not mean the business no longer owes the public a duty of care. Under general common law principals, that public, the invitee, is owed the "highest duty of care" under the law. The business can not disclaim away ALL responsibility for the state of the property onto which it is inviting the public.

While I think the court here reached the correct decision, I do believe it was a close case, one that had to be reviewed at some point. As ski resorts innovate in an attempt to make more money (e.g. the existence/number/size of parks, rails, booters, table tops, and so on compared to 10 or 15 years ago), there are going to arise untried questions of the assumption of risk doctrine under which the general industry of skiing takes place. Because these innovations are made with an eye towards further profit, I do not believe resorts should be exculpated from having to examine the new risks, and possible remedies thereto, simply because cost benefit analysis might take some time or money. Once the cost benefit analysis if undertaken, its up to the resort to, in effect, make and educated decision as to whether the risk is high enough that it should take precautions against it. In this case, the resort made (or correctly followed other resorts who made) the right decision, apparently, but I would certainly categorize the risk in question, here, as one of the "new" risks, which raise, in my opinion, valid questions that will often have to be addressed in court. To me, definitely not a frivolous case, and the plaintiff should not be punished for bringing a suit like this.

 

[ComeBackMudPuddles]

But what your describing is a sort of intentional, willful blindness. I do not see how refraining from doing the cost/benefit analysis would somehow exculpate the resort from liability if a court were to find a potential risk rose above the litany of risks covered by the doctrine of primary assumption of risk. In that situation, I think it matters not whether a cost benefit analysis was completed. In other words, you are talking about a a risk, let's call it SUPER RISK, because it rises above the many risks covered by the doctrine of primary assumption of risk. To a court or a jury, which is worse? A Resort that examined SUPER RISK and deemed that the expense in nullifying it out weighed the potential risk it posed? Or a resort that quietly kept its head under the covers and did not look into the risk at all?

To me, the willfully blind resort poses more of a threat the skiing community at large, and as a juror or judge I'd be more inclined to want to punish them for such irresponsibility. I would have more remorse for a resort that identifies its risks, is proactive in remedying those risks which it can afford to protect against, and perhaps fails to protect against a borderline risk eventually found to be a SUPER RISK.

Its not like every resort in the world must run its own individual cost benefit analysis on each risk. The courts pay strong deference to industry standards (as in this case) for a reason. I would guess that generally the big guys who can afford the analysis will lead the way, and the little guys pretty much just have to follow suit. The cost, therefore, is appropriately born by those who can afford it most.

Lastly, even though we all love the services mountains provide, you have to try not to let that cloud your thinking. A non-skiing court must correctly label a ski mountain for what it is: a for profit venture, who holds its doors open to the public to come skiing in an attempt to make money off of that public. Just because the industry is hurting, or the profit margin is not what it once was, does not mean the business no longer owes the public a duty of care. Under general common law principals, that public, the invitee, is owed the "highest duty of care" under the law. The business can not disclaim away ALL responsibility for the state of the property onto which it is inviting the public.

While I think the court here reached the correct decision, I do believe it was a close case, one that had to be reviewed at some point. As ski resorts innovate in an attempt to make more money (e.g. the existence/number/size of parks, rails, booters, table tops, and so on compared to 10 or 15 years ago), there are going to arise untried questions of the assumption of risk doctrine under which the general industry of skiing takes place. Because these innovations are made with an eye towards further profit, I do not believe resorts should be exculpated from having to examine the new risks, and possible remedies thereto, simply because cost benefit analysis might take some time or money. Once the cost benefit analysis if undertaken, its up to the resort to, in effect, make and educated decision as to whether the risk is high enough that it should take precautions against it. In this case, the resort made (or correctly followed other resorts who made) the right decision, apparently, but I would certainly categorize the risk in question, here, as one of the "new" risks, which raise, in my opinion, valid questions that will often have to be addressed in court. To me, definitely not a frivolous case, and the plaintiff should not be punished for bringing a suit like this.

+1

nice post. thanks for that. (and i would have said that even if i didn't agree with you 100%)

 

[SKidds]

Well said, and I don't really disagree with you. Perhaps my point was lost, or not well formed in the first place. You can't ignore ALL risks. My point is that you can't analyze every risk, either. SUPER RISK, or whatever you want to call them, sure. But everything? I'm not talking about refraining from analyzing all risks, I'm saying resorts shouldn't start doing analysis on the littany of risks that don't rise above the doctrine of primary responsibility. Resorts have a pretty good idea of what those are. Don't heap responsibilty on them to analyze the ones they feel don't fall outside of the doctine......like the case in this thread.

In the case we are talking about here, the courts deemed that the risk fell under the doctrine of primary responsibility. However, it seems like there are those who are saying that resorts should run a cost-benefit analysis on this very issue, and probably others like it. How many other issues that rightly fall under the doctrine would be analyzed, unnecessarily, if you start looking at stuff like this?

I tried to work in the point that resorts today are generally good corporate citizens. They are analyzing the SUPER RISKS and doing something about them when appropriate, and I think they are doing a pretty good job.

 

[jaywbigred]

Well said, and I don't really disagree with you. Perhaps my point was lost, or not well formed in the first place. You can't ignore ALL risks. My point is that you can't analyze every risk, either. SUPER RISK, or whatever you want to call them, sure. But everything? I'm not talking about refraining from analyzing all risks, I'm saying resorts shouldn't start doing analysis on the littany of risks that don't rise above the doctrine of primary responsibility. Resorts have a pretty good idea of what those are. Don't heap responsibilty on them to analyze the ones they feel don't fall outside of the doctine......like the case in this thread.

In the case we are talking about here, the courts deemed that the risk fell under the doctrine of primary responsibility. However, it seems like there are those who are saying that resorts should run a cost-benefit analysis on this very issue, and probably others like it. How many other issues that rightly fall under the doctrine would be analyzed, unnecessarily, if you start looking at stuff like this?

I tried to work in the point that resorts today are generally good corporate citizens. They are analyzing the SUPER RISKS and doing something about them when appropriate, and I think they are doing a pretty good job.

Okay, I'll agree with you to a point. But you have to differentiate between old risks and new risks. Should a resort have to analyze, and possibly remedy, the risks involved with trees on the side of trails? No, those risks are understood, and the analysis took place years ago, when ski resorts first opened their doors to skiers. However, when the resort introduces new features, e.g. a big rail or a bus buried in the snow in a terrain park, the resort should run a cost benefit analysis on it. Labeling a new feature as within the assumption of risk doctrine, without running the analysis, to me, would be an unnecessary business risk the resort should avoid.