Ski Sundown Lawsuit

[o3jeff]

The plaintiff's expert witness whose site I linked to last week testified on Friday. Here's an account of it, not including all the reader posts:

Testimony continues in suit against Ski Sundown
Published: Saturday, October 02, 2010
LITCHFIELD — Testimony on a lawsuit against Ski Sundown continued Friday with an expert witness speaking on behalf of James Malaguit, who was paralyzed after falling from a jump four years ago at the facility.
Ski safety expert Stan Gale of Golden Col., testified that the terrain park where the accident occurred is the most dangerous part of a ski area and that there was no evidence that Ski Sundown had adequate markings, supervision or warning signs in the terrain park at the time of the incident.
James Malaguit, 19, was a high school sophomore while visiting Ski Sundown with his family on Feb. 17, 2006, when he lost his balance coming off a man-made jump in the terrain park on the ski area’s Exhibition run. He landed on his head. His injuries have left him paralyzed from the chest down. He was not wearing a helmet or goggles at the time of the incident.
During Friday’s proceedings, the plaintiff’s attorney, Ralph Monaco of New London, further questioned Gale on his claims.
“Mr. Gale, did you see any evidence that there was any perimeter security, poles, flags, supervision, or signage where James entered the terrain park?”
Gale said he determined, after conducting an investigation at Ski Sundown, that there was inadequate safety for the terrain park.
“Did you see any evidence that trail was groomed when James went in the terrain park?” Monaco asked.
Gale noted that he skied the same run and at the same time Malaguit’s incident occurred and that the trail was un-groomed.
“Have you seen any evidence that ski sundown had any fence separating the terrain feature from Exhibition to the left side of that trail?” Monaco asked.
Gale denied seeing any evidence of a fence in his ventures to Ski Sundown.
Gale, an employee of Rock Mountain Consultation LLC, has visited approximately 135 ski areas, investigated nearly 100 ski areas and has never in his life witnessed a ski area that treated terrain features the way Ski Sundown did, according to his testimony.
“I have never seen it in magazines, photographs, anywhere in the industry,” Gale testified, referring to Ski Sundown’s lack of safety and proper equipment in the terrain park.
“I never heard of it (lack of warning signs and safety) in the modern age of risk management,” Gale stated. “In the early 2000s ski areas had to do something to change the safety of the sport.”
Ski Sundown did not meet industry standards with regards to terrain park maintenance, according to Gale.
“He was allowed to be there, that is what caused it,” Gale stated when questioned about the cause of Malaguit’s injury. “It was Russian roulette with a smoking gun, it was bound to happen.”
This case is scheduled to continue next week. Jeffrey Perry with Comprehensive Rehabilitation Consultants will testify about Malaguit’s spinal cord injury.
http://www.registercitizen.com/articles/2010/10/02/news/doc4ca66d63e90da745694722.txt

Wow, he just so happened to be skiing with this ski expert at the same time, unbelievable.

 

[gmcunni]

Feb. 17, 2006, when he lost his balance coming off a man-made jump in the terrain park on the ski area’s Exhibition run.

what was the layout in 2006? terrain park on Exhibitin??? or is more like the jump was on the bottom of stinger (as is today) and the guy skied exhibition and crossed over?


i believe i read earlier that he crossed 3 trails to get to the jump, so is the "expert" or lawyer saying the jump being on Exhibition (a blue trail) rather than stinger (black) a disingenuous way of describing the scenario in the plaintiff's favor?

 

[SkiDork]

when he said he skied the same run at the same time, does that mean the same day? If so, how odd that an expert ski witness is there when it happens. If not, what the hell does it matter if its groomed or not on another day?

 

[HowieT2]

No one is arguing that we shouldn't have a court system or laws, some just think we need a better system. Way to continually miss the point, or is it that you're purposely misstating the other side in an attempt to make your argument stronger???

I'm glad to see you accept that we need a court system governed by laws. As with any other system, improvements are always needed, but the status quo works better than we are led to believe.

 

[legalskier]

Wow, he just so happened to be skiing with this ski expert at the same time, unbelievable.

This is why, as HowieT2 pointed out last week, press accounts of trials and legal proceedings aren't very reliable. For example, Gale's opinion-- “It was Russian roulette with a smoking gun, it was bound to happen"--probably was struck from the record by the judge, but the reporter mentioned it anyway...because it makes good copy of course.
When I was a juror in the case I mentioned earlier, I read the press accounts afterwards; they were so inaccurate that I thought the reporters had been attending a different trial. It's a matter of perception, and the only one that counts is the jury's.

 

[legalskier]

what was the layout in 2006? terrain park on Exhibitin??? or is more like the jump was on the bottom of stinger (as is today) and the guy skied exhibition and crossed over?
i believe i read earlier that he crossed 3 trails to get to the jump, so is the "expert" or lawyer saying the jump being on Exhibition (a blue trail) rather than stinger (black) a disingenuous way of describing the scenario in the plaintiff's favor?

when he said he skied the same run at the same time, does that mean the same day? If so, how odd that an expert ski witness is there when it happens. If not, what the hell does it matter if its groomed or not on another day?

I'm sure Sundown's lawyers were all over this, but the article gives us no insight.

 

[Smellytele]

The damning evidence from him is about fencing and signage which most ski areas do have around their parks. Now we know why they are.

 

[mister moose]

The damning evidence from him is about fencing and signage which most ski areas do have around their parks. Now we know why they are.

Yeah, I'm sure the signs on hair dryers warning you not to use them in the shower or bathtub really cut down on the number of idiots that would consider that an ok thing to do. If you're smart enough to read and understand the label, you're smart enough to know not to take any electrical appliance into the shower with you.

I wonder how much a sign would have made a meaningful difference to a 15 year old who testified that he saw the jump on the way up the chair and wanted to try it...

The sign only deflects future personal injury lawyers from complaining there was no sign. It does nothing to 1) change the nature of a 15 year old, 2) add to the judgement of a 15 year old, 3) change the assumption of risk by anyone who tries the jump, 4) require that anyone even read the sign.

I notice there is no claim whatsoever of "I didn't see the jump was coming", or "I didn't mean to take the jump, it wasn't adequately marked"

 

[jaywbigred]

Yeah, they do that. But at the same time, the American Bar Association is doing their own PR job, partially represented by that link you gave. Both perfectly reasonable things to do, neither side to be trusted entirely. Both sides have some basis in truth, and often don't even argue the same points. Both sides position the other as the bad guy. But if the PR campaign was as one sided as Howie was saying, then the tort reform would already be a done deal. I'm fully aware of the way the game works, my company's currently involved in a massive single contract with the government where the exact same type of stuff is going on.

I'm not trying to attack the lawyers, I'm trying to defend the insurance companies from the lawyers' attacks. I've even thrown in a defense of the lawyers here and there - to me, in this issue they're on opposing sides, both having their points. What's right, as often is in the case, is somewhere in the middle.

Mondeo, ftw!!!

If Malaguit can get his case past a motion for directed verdict when he rests (which is a big if), he won't receive any award if the jury finds he was at least 51% negligent when he took that jump, according to this:

Comparative negligence allows an injury victim to seek compensation for any part of his or her injury that wasn't their fault. For example, if you are involved in a car accident and you are partially at fault for that accident, you can still seek damages from the other parties who were also at fault for your injuries based on their percentage of fault.
Contributory negligence is a defense that can prevent victims from collecting any compensation for an accident for which they are in any way to blame. "Pure contributory negligence" does still exist in some states - meaning that if a victim is found in any way at fault for his or her personal injury, the victim cannot collect any compensation from other parties for the injury. This defense has been modified in many states so that a victim who is less than 50% at fault for his or her accident can still seek compensation for injuries. "Pure comparative negligence" is kind of the opposite of pure contributory negligence - it allows a victim of injury who may have been mostly responsible for the accident to collect damages from the parties that were less at fault for the injury. "Modified comparative negligence," however, allows a victim to recover only if their fault level is below a certain percentage. Laws about comparative and contributory negligence vary widely state by state. It's important to know how these laws can affect your injury lawsuit.
Connecticut Negligence Laws
Connecticut is a "pure comparative negligence" state. According to Connecticut state law, a party who is up to 50% at fault for an accident can still seek compensation for any personal injury incurred. If you are 51% or more at fault, you cannot seek compensation in the state of Connecticut. Certain additional statutes may apply to pure comparative negligence in the state of Connecticut - so the way it affects your case may vary.
http://www.totalinjury.com/connecticut-negligence.aspx

For example, in the Blonski case the jury found she was 30% negligent, so she was awarded 70% of the overall damages number the jury had calculated. If they had found she was > 50% negligent, she would have received nothing, i.e. the defendant was 21% away from a total win.

I was wondering if CT was a comp. state. Thanks for the info!

While I agree with all of this....

I'd point out that ski resorts have gone out of their way to create attractive nuisances. That terrain park is screaming "come play with me" to testerosterone-ladden low skill 15-year-olds. If you look at what they've done with teen driving laws recently, it's pretty clear that society believes that teens have lousy judgement. The barrier to entry in a terrain park is a lift ticket. Anybody can click into twin tips, put on a tall tee, dangle their suspenders, and claim to be a park rat. I watch the body bags and medivac helicopters coming out of "The Stash" at Killington and shake my head. I think that terrain should be limited to people who can pass a competence test. To get into a novice park, you at least need to watch the safety video so you're not stopping below features or launching off things without a spotter. To get into a more difficult park, you at least need to demonstrate that you can handle the green circle park. That would prevent the Sundown-style injuries. People will still get injured but it should cut down on the worst of it.

I think they do some form of this at Stratton. It is very effective.

Yeah, I'm sure the signs on hair dryers warning you not to use them in the shower or bathtub really cut down on the number of idiots that would consider that an ok thing to do. If you're smart enough to read and understand the label, you're smart enough to know not to take any electrical appliance into the shower with you.

I have to disagree with this. I think as a little kid, it was one of those stickers on my Mom's hairdryer that actually taught me the concept that electricity and water are a bad combo.

I wonder how much a sign would have made a meaningful difference to a 15 year old who testified that he saw the jump on the way up the chair and wanted to try it...

The sign only deflects future personal injury lawyers from complaining there was no sign. It does nothing to 1) change the nature of a 15 year old, 2) add to the judgement of a 15 year old, 3) change the assumption of risk by anyone who tries the jump, 4) require that anyone even read the sign.

Again, I disagree. I think a sign can make a big difference to a 15 year old. I know it did for me as a teenager...I think it was at Sunday River, we had a group of us 13-15 and saw I think it was White Heat from the lift. Decided to give it a shot, but they forced you to ski through a gate with a sign over it about the severity of the terrain, the likelihood of injury, and so forth. It was enough for us to skip it. The next year when we were there at the same time, we were all better skiers, and were able to ski it.

 

[mister moose]

I have to disagree with this. I think as a little kid, it was one of those stickers on my Mom's hairdryer that actually taught me the concept that electricity and water are a bad combo.


Again, I disagree. I think a sign can make a big difference to a 15 year old. I know it did for me as a teenager...I think it was at Sunday River, we had a group of us 13-15 and saw I think it was White Heat from the lift. Decided to give it a shot, but they forced you to ski through a gate with a sign over it about the severity of the terrain, the likelihood of injury, and so forth. It was enough for us to skip it. The next year when we were there at the same time, we were all better skiers, and were able to ski it.

I agree that signs & labels can perform some function. Signs cannot prevent all accidents, nor anticipate all hazzards. I think it is misplaced to look to a sign, or lack thereof to place blame in an accident such as this. Signs will multiply to an overload level if this solution is subscribed to.

After writing the previous post, it occurred to me that while a sign may not be the root cause, other forms of marking man made terrain changes that a normal individual would be taken by surprise by would be in order. Cases in point: Outlining in day-glo paint jumps, ramp edges, and other potentially hazardous park features. Roping that indicates a segregated area for a different skill level exists ahead. Pictograph signs like I saw last year ahead of seeded mogul fields. These types of markings alert you to the fact that something unusual is ahead, and don't require the ability to read english to understand. I haven't read where any marking at all was present in this case, perhaps there was. Even so, the recognition of the ski jump as a method to launch you into the air was something the plaintiff was well aware of, he saw it from multiple angles on the ride up, and decided he wanted to try it. The only thing a sign could ad is the specific injury warning at this specific jump.

Shall we require a similar sign at the entrance to all tree runs? At the loading area of all lifts? In front of all snow gun hydrants? At the top of all trails that have snowmaking in progress? In parking lots advising that moving cars might be present? In the lodge warning of drinking and driving, consuming undercooked foods, or trans fats and high fructose corn syrup? There has to be a limit.

What would be the basis of the suit if his injury resulted from impacting a tree at high speed with no helmet? That there was no helmet sign at the top of the trail?

Don't get me wrong here. I agree with Geoff that some sort of terrain park pass with attendant education on terrain park safety is a good idea. Passing through a fenced turnstile type entrance with good signage at terrain parks is a good idea. What I'm having trouble with is finding Sundown responsible for an injury on a feature that was knowingly and intentionally taken by a skier at a planned sufficient speed to go airborne.

 

[HowieT2]

I agree that signs & labels can perform some function. Signs cannot prevent all accidents, nor anticipate all hazzards. I think it is misplaced to look to a sign, or lack thereof to place blame in an accident such as this. Signs will multiply to an overload level if this solution is subscribed to.

After writing the previous post, it occurred to me that while a sign may not be the root cause, other forms of marking man made terrain changes that a normal individual would be taken by surprise by would be in order. Cases in point: Outlining in day-glo paint jumps, ramp edges, and other potentially hazardous park features. Roping that indicates a segregated area for a different skill level exists ahead. Pictograph signs like I saw last year ahead of seeded mogul fields. These types of markings alert you to the fact that something unusual is ahead, and don't require the ability to read english to understand. I haven't read where any marking at all was present in this case, perhaps there was. Even so, the recognition of the ski jump as a method to launch you into the air was something the plaintiff was well aware of, he saw it from multiple angles on the ride up, and decided he wanted to try it. The only thing a sign could ad is the specific injury warning at this specific jump.

Shall we require a similar sign at the entrance to all tree runs? At the loading area of all lifts? In front of all snow gun hydrants? At the top of all trails that have snowmaking in progress? In parking lots advising that moving cars might be present? In the lodge warning of drinking and driving, consuming undercooked foods, or trans fats and high fructose corn syrup? There has to be a limit.

What would be the basis of the suit if his injury resulted from impacting a tree at high speed with no helmet? That there was no helmet sign at the top of the trail?

Don't get me wrong here. I agree with Geoff that some sort of terrain park pass with attendant education on terrain park safety is a good idea. Passing through a fenced turnstile type entrance with good signage at terrain parks is a good idea. What I'm having trouble with is finding Sundown responsible for an injury on a feature that was knowingly and intentionally taken by a skier at a planned sufficient speed to go airborne.

Great point. Dont know what the defense lawyer is arguing or what his cross examination of the plaintiffs expert consisted of, but this is where I would go. Signage is to warn of unexpected dangers. Plaintiff admitted that he had seen the jump and made a conscious effort to try it. What would a sign have changed?
The jury is the one deciding where to draw that line, what the limits are and what is reasonable. Not some, judge, politician or government bureaucrat each of whom have the potential to have conflicts of interest. But a group of ordinary citizens, with no stake in the outcome.

 

[mondeo]

How much leeway do both sides get during jury selection? In the WH Res case, would anyone who had riden there basically been thrown out? Any MTB rider? In this case, any skier, Sundown skier, park rat, etc?

I'm guessing that anyone who had ridden at WH Rez would automatically be against the plaintiff, seeing as how they'd know how stupid you'd have to be to ride into that gate. I'd think that would be grounds to dismissing anyone as a potential juror, prior knowledge of such details.

 

[Tin Woodsman]

I agree that signs & labels can perform some function. Signs cannot prevent all accidents, nor anticipate all hazzards. I think it is misplaced to look to a sign, or lack thereof to place blame in an accident such as this. Signs will multiply to an overload level if this solution is subscribed to.

After writing the previous post, it occurred to me that while a sign may not be the root cause, other forms of marking man made terrain changes that a normal individual would be taken by surprise by would be in order. Cases in point: Outlining in day-glo paint jumps, ramp edges, and other potentially hazardous park features. Roping that indicates a segregated area for a different skill level exists ahead. Pictograph signs like I saw last year ahead of seeded mogul fields. These types of markings alert you to the fact that something unusual is ahead, and don't require the ability to read english to understand. I haven't read where any marking at all was present in this case, perhaps there was. Even so, the recognition of the ski jump as a method to launch you into the air was something the plaintiff was well aware of, he saw it from multiple angles on the ride up, and decided he wanted to try it. The only thing a sign could ad is the specific injury warning at this specific jump.

Shall we require a similar sign at the entrance to all tree runs? At the loading area of all lifts? In front of all snow gun hydrants? At the top of all trails that have snowmaking in progress? In parking lots advising that moving cars might be present? In the lodge warning of drinking and driving, consuming undercooked foods, or trans fats and high fructose corn syrup? There has to be a limit.

What would be the basis of the suit if his injury resulted from impacting a tree at high speed with no helmet? That there was no helmet sign at the top of the trail?

Don't get me wrong here. I agree with Geoff that some sort of terrain park pass with attendant education on terrain park safety is a good idea. Passing through a fenced turnstile type entrance with good signage at terrain parks is a good idea. What I'm having trouble with is finding Sundown responsible for an injury on a feature that was knowingly and intentionally taken by a skier at a planned sufficient speed to go airborne.

Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability? What I mean by that is if someone has such a pass and then hurts themselves it the park, could they sue the ski area for insufficiently judging their skill level? Plaintiffs attorneys would surely claim that their client thought they would be safe since the imprimatur of safety had been granted to them by the defendant, no?

Either way, one answer is to have video surveillance of your terrain park at all times. It would have been helpful to capture this self-professed "intermediate to advanced" skier booking down Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.

 

[campgottagopee]

Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.

Dude, those are my people!!

 

[HowieT2]

How much leeway do both sides get during jury selection? In the WH Res case, would anyone who had riden there basically been thrown out? Any MTB rider? In this case, any skier, Sundown skier, park rat, etc?

I'm guessing that anyone who had ridden at WH Rez would automatically be against the plaintiff, seeing as how they'd know how stupid you'd have to be to ride into that gate. I'd think that would be grounds to dismissing anyone as a potential juror, prior knowledge of such details.

Jury selection rules vary by venue. I have no idea how its done in CT. In NY state courts the lawyers have wide latitude in questioning the jurors as its usually done unsupervised . Familiarity with the scene of an accident would not disqualify a juror from serving. However, if that juror expressed a prejudged opinion about the outcome or indicated that they would base their decision on their recollection of the scene as opposed to the evidence adduced, they would be.
In Federal court the judges pick the juries based on questions devised with the lawyers input.

 

[HowieT2]

Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability? What I mean by that is if someone has such a pass and then hurts themselves it the park, could they sue the ski area for insufficiently judging their skill level? Plaintiffs attorneys would surely claim that their client thought they would be safe since the imprimatur of safety had been granted to them by the defendant, no?

Either way, one answer is to have video surveillance of your terrain park at all times. It would have been helpful to capture this self-professed "intermediate to advanced" skier booking down Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.

I haven't seen any cases like that, but I would think a pass would not increase the chances of liability. These cases are generally based on an allegation that the resort created a hazardous condition which the plaintiff was unaware of or could not appreciate as a result of a failure to warn of same. Hence the plaintiffs expert emphasis on the lack of signage. I think the pass would take care of that pretty well.

 

[o3jeff]

Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability? What I mean by that is if someone has such a pass and then hurts themselves it the park, could they sue the ski area for insufficiently judging their skill level? Plaintiffs attorneys would surely claim that their client thought they would be safe since the imprimatur of safety had been granted to them by the defendant, no?

Either way, one answer is to have video surveillance of your terrain park at all times. It would have been helpful to capture this self-professed "intermediate to advanced" skier booking down Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.

Mount southington makes you watch a video and get an additional pass to use their terrain park. I assume they do this to eliminate being sued.
http://www.mountsouthington.com/content/terrain-parks

 

[legalskier]

Dont know what the defense lawyer is arguing or what his cross examination of the plaintiffs expert consisted of, but this is where I would go. Signage is to warn of unexpected dangers. Plaintiff admitted that he had seen the jump and made a conscious effort to try it. What would a sign have changed?

Or how about there was some signage, but....

Q: Mr Malaguit, you say that the trail wasn't marked as dangerous at the point you crossed over laterally from another trail midway down the mountain before you took that jump, correct?
A: Yes, or else I wouldn't have tried it.
Q: But you had ridden the chair to the top of the lift earlier and had skied past the top of that trail, correct?
A: Yes, I believe I did.
Q: And the top of that trail did have a sign warning its level of dangerousness, correct?
A: Er...yes, I think it did.
Q: And because of that warning, you decided in your earlier runs not to ski that trail from the top?
A: That's right.
Q: So when you entered the trail midway down the mountain to take the jump you'd scoped out from the lift, isn't it true that you had in fact already seen signs warning that this trail was dangerous?
A: Um...yes.
Q: And yet you still proceeded onto this dangerous trail?
A: Um, er...

(Not being familiar with Sundown, I'm assuming there was a some signage at the top of that trail.)

 

[legalskier]

Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability?

The only time I paid for an additional pass to enter a park area was when MC cordoned off a large section of Vernon Peak and installed some features there a few years ago. You could only access it if you had the pass, and you could only enter that area from a choke point off the lift that had huge warning signs on either side. There was no way anyone could claim they weren't warned.

 

[gmcunni]

Mount southington makes you watch a video and get an additional pass to use their terrain park. I assume they do this to eliminate being sued.
http://www.mountsouthington.com/content/terrain-parks

language on web site says they "urge you" but don't require you to watch the vid.

All patrons interested in using our terrain parks are urged to watch the safety video which is available from our website or in the Red Barn Cafeteria. To obtain a DROP ZONE Pass valid for the entire 2010-2011 ski season you must fill out a form providing your name and e-mail address (if you have one). The fee is $10, which covers our processing costs as well as maintenance of the terrain park for your DROP ZONE enjoyment.

regardless, this is F'd up IMHO. what's next, hand holding on the lifts for anyone who's scared and wants their mommy?


this thread makes me wonder if Mohawk has never done a park just for the liability issue. i just thought they were behind the times.