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The Little Book of Skiing Law

The Little Book of Skiing Law

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The Little Book of Skiing Law

Lunghezza:
195 pagine
2 ore
Pubblicato:
Dec 7, 2013
ISBN:
9781614388333
Formato:
Libro

Descrizione

Discover the legal side of skiing, snowboarding, tobogganing, and other types of snow sports with this fascinating, new addition to the ABA Little Books Series! In it, you'll find a variety of compelling questions, such as:• Is falling down an unmarked ravine near a ski run an "inherent danger and risk" of skiing?
• Can the Utah tourism bureau use the phrase "The Greatest Snow on Earth" without offending the venerable circus trademark?
• Can the flight attendant on a layover apply to the airline for workers compensation for her injury suffered during her ski outing?
Pubblicato:
Dec 7, 2013
ISBN:
9781614388333
Formato:
Libro

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Anteprima del libro

The Little Book of Skiing Law - Cecil C. Kuhne III

Chapter 1

Out of Bounds:

The Inherent

Dangers of Skiing

Graven v. Vail Associates, Inc.,

909 P.2d 514 (Colo. 1995)

Vail is rightfully considered one of the premier skiing destinations in the country, if not the world. The statistics alone are impressive: a 5,000-acre mountain that offers a vertical height of 3,500 feet, more than 30 ski lifts, and almost 200 skiing trails.

David Graven, a forty-one-year-old securities lawyer from Denver, considered himself a pretty good, intermediate skier. One afternoon he was skiing Vail with friends. This particular run was unfamiliar to Graven, and he considered it more difficult than he was used to. He moved toward the far left side of the run and slowed down so some of his colleagues could catch up. As he was coming to a complete stop, he encountered some slushy snow, lost the edges of his skis, fell down, slid several feet, and then plunged forty-five feet down a steep ravine. Graven was unable to stop until he collided with a cluster of trees at the bottom of the precipice.

Badly injured, Graven brought a negligence action against Vail Associates, alleging that the chasm was immediately next to the ski run and that Vail should have warned him of this dangerous condition. Vail responded that Graven’s claims were barred by the explicit provisions of Colorado’s Ski Safety Act, which prohibited claims against ski operators for injuries resulting from inherent dangers and risks of skiing.

In support of its motion for summary judgment, Vail submitted an affidavit of Lawrence Lane, one of the defendant’s experts who had investigated the accident. He described the area as follows:

The tree about which David Graven injured himself is off of the ski trail known as Prima. There is a snow-covered transition which is off of the groomed portion of Prima which Graven went through before striking a tree in a naturally forested area. The area and the trees that David Graven complains about represent natural terrain features as well as a variation in terrain as a result of natural conditions, slope design, and grooming operations.

Graven countered with his own affidavit, in which he described the scene a little differently:

The area where I was injured was off the ski run known as Lower Prima. The accident occurred on the side of the ski run, after I had left a transition area. When attempting to stop at the side of the ski run, I fell down a 40 to 50 foot precipice.

Notwithstanding the differences between the two affidavits, the trial court granted summary judgment for Vail.

The court held that Graven’s injuries were caused by inherent dangers and risks of skiing, as defined by the statute, and specifically: (1) variations in steepness or terrain, whether natural or as a result of slope design; (2) snow conditions as they exist or may change, such as . . . slush; (3) surface or subsurface conditions such as . . . trees; and (4) the failure of skiers to ski within their own abilities.

Accordingly, the trial court held that Vail had no duty to warn of such inherent dangers and risks, and that Graven’s claims were barred by the statute as inherent dangers and risks of skiing.

The court of appeals affirmed the summary judgment, holding that as a matter of law the precipice down which Graven slid was a variation in steepness or terrain and therefore did not have to be marked with a warning sign. The appellate court found it unnecessary to reach the issue of whether Graven failed to ski within his own abilities.

Graven again appealed—this time to the Colorado Supreme Court. The supreme court saw its mission as, first, to determine the scope of protection for ski operators under the Ski Safety Act, and, second, to determine if any genuine issue of material fact existed concerning the events on which Graven based

his claim.

As the court pointed out, the Ski Safety Act was enacted in 1979 to establish safety standards and to define the relative rights and responsibilities of ski operators and skiers. As originally enacted, the act identified specific duties owed by ski operators, and it expressly stated that any violation of these duties constituted negligence. The original act noted generally the dangers and risks inherent in the sport of skiing, but did not otherwise describe them.

The legislature amended the act in 1990. These amendments were intended to clarify the law to provide additional protection for ski area operators. The amendments specifically defined the phrase inherent dangers and risks of skiing as:

Those dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

Ski operators were required to post warning signs with respect to danger areas, but not if those areas presented inherent dangers and risks of skiing, as defined by the Colorado legislature.

Vail contended that because slush, terrain variations, and trees were involved, the accident necessarily resulted from inherent dangers and risks of skiing.

The Colorado Supreme Court disagreed, noting that not all dangers encountered on ski slopes are inherent to the sport, and that this determination cannot always be made as a matter of law.

Graven’s description of the terrain that caused his injuries was that of a steep precipice immediately next to the ski run. It conjured up an image of a highly dangerous situation created by locating a ski run at the edge of a steep drop-off. In the supreme court’s mind, if such a hazardous situation presented an inherent risk of skiing that need not be marked as a danger area, the ski area operator’s duty to warn was essentially meaningless.

The configuration of the terrain painted by Vail was quite different. Its witness described the drop-off as a snow-covered transition off the groomed portion of the ski run and of a type commonly existing at Vail. This description suggested a relatively innocuous slope that might well be part of the inherent dangers and risks of skiing.

The court noted that the record contained no photographic or other objective evidence that accurately depicted the terrain where the accident occurred. As a result of the conflicting descriptions, the supreme court held that a genuine issue of material fact existed and that summary judgment was inappropriate.

Disputed questions of material fact also remained on the issue of proximate cause. The slush, the trees, the ravine, and Vail’s failure to post warning signs were all alleged to have contributed to the accident. To establish causation, Graven had to prove that Vail’s conduct was a substantial contributing cause of the injury. As various factors were alleged to have contributed to Graven’s injuries, the determination of whether a particular factor was substantial had to be made by the jury.

Graven also asserted that the trial court erred when it held that his injuries resulted from his failure to ski within his own ability. The supreme court held that determination of that question also required the resolution of material questions of fact.

Not all the justices of the court agreed. A strong dissent argued that the majority employed too restrictive of a reading of the Ski Safety Act. The statutory definition of inherent risks specifically included variations in steepness or terrain, whether natural or as a result of slope design, snowmaking, or grooming operations. In the mind of the dissent, inherent risks included terrain variations that might be encountered adjacent to ski runs, not solely those occurring within skiable areas.

The ravine into which Graven fell was a natural, unaltered part of the Vail ski area. The dissent noted that

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