The first snowfall of the year seems like a good opportunity to talk about skiing and snowboarding – a major hobby of mine.
As many of our friends know, our son was in a pretty serious skiing accident last winter. The edge of his ski clipped some ice and he was launched off the trail and into the woods where he hit a tree. Thankfully his leg took the impact and while he had to have surgery and faced a long recovery, we know (and try not to think too much about) how it could have been a lot worse.
As any good son of lawyers, he soon jokingly asked whether he could “sue God for the ice.” Well, aside from shaking his fist, he's out of luck.
But, sometimes, someone can be held liable for a skiing accident. So, today we're talking about when that might happen.
Assumption of risk is a legal doctrine that can apply to relieve defendants of liability for injuries sustained by an individual in the ordinary course of participating in various sporting or recreational activities like, here, skiing.
The Third Department (the NY appellate court that covers the area where we practice) recently had occasion to discuss liability for skiing related injuries in a December 2021 case involving a first-time skier's fall during a lesson. The Court laid out the analysis as follows:
"Under the assumption of risk doctrine, a ski area operator is relieved from liability for risks inherent in the sport of downhill skiing ... when the participant is aware of, appreciates and voluntarily assumes those risks. Whether a participant is aware of and appreciates a particular risk must be assessed against the background of the skill and experience of the participant.”
Under New York's Safety in Skiing Code (see General Obligations Law art 18), the Legislature has determined that downhill skiing contains inherent risks that may result in personal injury In light of such recognition, both skiers and ski area operators have certain defined duties.
Some of the inherent risks in skiing recognized by the statute include: “the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state.” General Obligations Law § 18–101(1).
In the Bodden case, the court found that the assumption of risk doctrine did not apply to relieve the ski mountain of liability (at least at a pre-trial phase) because the skier was a novice, testified that she expressed apprehension to her instructor that she was able to move from the bunny hill to a regular trail, was on a trail that the instructor acknowledged included a risk to skiers of going into the trees, and the skier did not know how to adequately stop or slow down (the instructor admitted that when the skier went out of control, the experienced instructor was not able to catch up to her).
Assumption of risk typically also will not apply to “concealed or unreasonably increased risks or unique and ... dangerous condition[s] over and above the usual dangers that are inherent in the sport”. Martin v. State, 64 A.D.3d 62 (3d Dep't 2009). But it does apply to “risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable”. Id.
Examples of when a ski mountain or other defendant might be liable for injuries to a skier notwithstanding assumption of risk include: when the ski lift operator fails to stop the lift when someone has fallen or is tangled (Miller v. Holiday Valley, Inc., 85 A.D.3d 1706 (4th Dep't 2011); when another skier's reckless conduct causes the accident [meaning that the reckless skier him/herself would be liable] (DeMasi v. Rogers, 34 A.D.3d 720 (2d Dep't 2006)); a case we recently handled in which the bar of a poorly maintained lift chair fell on our client's face.
Examples when a ski mountain or other defendant were found not to be liable: experienced skier's fall on rail slide in terrain park (Martin v. State, supra); snowboarder standing in the middle of the trail struck by another skier (Martin v. Flutko, 2005 WL 742368 (Sup. Ct. Monroe County 2005)).
If you have been injured skiing, or engaging in another recreational activity, and think it was because of risks that went beyond what is normally expected, give us a call. We are happy to see if we can help.
ABOUT THE AUTHOR
Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on exclusively representing individuals in a small number of employment and serious injury/medical malpractice matters.
