Question about Liability for Collision

Quote:

Originally Posted by Cirquerider 

 

Paragraphs are easy, use the return key.  I added some for you where you indicated.

 

1. You
2. can
3. also
4. number

 

Far too many fallacious arguments in this thread to argue any more.  If you can't beat em, join em.

 Actually, nah, there's something about the new site that occasionally makes it impossible for me to either create paragraphs or edit.  In some posts I've clearly found that return key; other posts not.  Since you had previously completely whiffed on the purpose of waivers I can see why you'd like to try to simply create distractions through simple sarcasm.  Fun and games.
 

Maybe go and talk to the lawyer who drafted those ESA waivers about whether they're designed to protect against negligence before stating things that are both wrong and against the actual interests of specialty camps everywhere.  He'll say states differ on how strict they are, that with kids it's different because kids aren't considered competent to enter contracts themselves, but that basically yeah waiver of negligence claims and buttressing of assumption of risk is what they're for.  He'll say it better than me but that's why they pay him the big bucks.  

Note the paragraph in that post, Cirque bro.  It's the new site, go figure.

actually, I think you guys agree, for the most part...

Waivers are definitely designed to protect against negligence

But they do not do so absolutely

They help, but they do not protect the company/instructor 100%

They just raise the bar somewhat (to a greater or lesser degree, depending on how they are written, presented and any number of other factors)

Well skier_j:

A few years ago, I was robbed and then beaten by three young african americans at gunpoint.  But it has to do with skiing being a sport, and my knowledge of ski law and its application long predates that robbery.  And no, the assailants weren't caught.   And no, I don't have any doubt whatsoever about our legal system; no problem of any kind.   

My stance?  I'm not telling you a "stance"?  Law is what it is.  This ad hominum argument of calling the law "my stance" and "wildly off center" - hey, if you don't like it - elect someone else to your Supreme Court or go hog wild like Colorado and pretend you can legislate away inherent risks.

Ski law everywhere else (besides Colorado) is very simple - you ski, you assume all inherent risks, including the negligence of others, so you can't sue.  You don't like it, don't ski, or go to Colorado. 

How about assault/battery? 

Quote:

Originally Posted by Silverback 

 

How about assault/battery? 

I'd suggest a lot of people do some background reading on some of these legal terms.  I know you're asking about assault, but other posters clearly need to bone up on negligence and on what a waiver is, for instance.  If by assault you mean intentionally punching someone, or say intentionally slamming into them at high speed because you're super-pissed and want to teach them a lesson, those are both clearly not encompassed within the activity of skiing and clearly could give rise to civil and criminal liability.   Bumping someone in a skiercross by contrast would not be actionable even if intentional because of the nature of the event, even if it gets you dq'd.  At the end of the day a lot of it boils down to common sense.

Why do we pad towers and snow making gear but not trees then??

I'd assume all these items fall into the assumed risk category.

Quote:

Originally Posted by skier_j 

 

Why do we pad towers and snow making gear but not trees then??

 

I'd assume all these items fall into the assumed risk category.

 

A resort's duties to its guests are different from skier-skier duties.  There is also a distinction drawn between manmade structures and natural structures, and further between really big manmade structures (the lodge) and small ones (snowguns).  Whether there's a duty to pad towers and similar structures actually varies from state to state.  Very broadly speaking, leaving padding to one side, hitting clearly visible manmade structures IS an assumed risk of skiing.  The idea of at least marking snowguns is to make them clearly visible if they might not otherwise be.  Padding or marking these structures in no way undercuts assumption of risk as a doctrine.

Hitting a snow making stantion, lift tower, tree, even buildings -- padded or unpadded -- has resulted in MANY many suits, some won and some not, in many states.  I have no specific case cites as proof, just common sense.

How could any of them get to that point if the assumption is those are risks of the sport.

Hit something that moves (like a snow mobile or groomer) and the $ involved usually start at 6 figures.  (5 figures if the vehicle was parked)

These would fall under assumtption of risk as well.

How is it possible that even one area anywhere has has to pay out any damages at all---for that matter, why is liability insurance even necessary if the assumption is that nothing that happens within the confines of using a lift ticket is actionable??

I'm obviously missing something.

Quote:

Originally Posted by skier_j 

 

 

Hitting a snow making stantion, lift tower, tree, even buildings -- padded or unpadded -- has resulted in MANY many suits, some won and some not, in many states.  I have no specific case cites as proof, just common sense.... 

 

 

 

Classic internet.  Go read up, you're missing lots of things and you're not going to come to understand them here. 

My local area alone defends itself (or more precisely its insurer defends it) from these sort of things a few times every season.    I hear about most of them anecdotaly and have been deposed  for accident info on more than one occasion in the past 20 years, knock on wood, I have never been compelled to testify in court. 

Not many end up in court---in most years none, matter of fact I can't recall that last one that actually went through the courts----, but not many end up fading away for lack of basis either.

I'm sure that some that really had little worth get settled by the insurer because of the nuisance factor.

Thats the basis for my common sense comment.

Some have involved collisions with other sliders, most involve collisions with fixed objects or falls from features of the area, man made or otherwise and a few were just accidents that resulted in injury.

To say that none of these incidents can be  taken to court because the injured assumed the risk that their injury was part of the sport is just wrong---at least in my experience---which when you boil it down to  essence, is all I really care about.

carry on

I'm out of this one

lest talk about rotary motion or phantom moves or something less controversial shall we??

Quote:

Originally Posted by CTKook 

 
 

Curious Mike, do you think the suit against the school district and Mammoth was frivolous in Lackner? I know they were "deep pockets" but so is the Vatican, you may as well have sued the Pope. I feel sorry for the woman's injury, if she wanted to sue someone she should have settled for the person who actually had anything to do with hitting her. (I actually do think some elements of the "hitt-er's" behavior, as written up, bordered on recklessness but maybe is not quite there.) Who picked up attorney's fees for the school district and Mammoth? Would you support forcing the plaintiff to reimburse their attorney's fees since they had no connection to the case and summary judgment was granted in their favor? Unless you want people to just be able to take free shots at the lottery, it seems that would be fair.
 

No, I don't think those suits were frivolous.  There's a difference between a weak case and a frivolous one, and the fact that Mammoth and the school district ultimately won doesn't make the lawsuit frivolous.   Did you actually read the complaint in Lackner?  If so, did you understand the plaintiffs' theory of why Mammoth and the school district were liable?  I did, and to me it seemed weak, but certainly not frivolous.

Any why would anyone support forcing plaintiffs to pay defendants' legal bills if they lose?  If you did that, you'd be setting up a situation where plaintiffs would only ever sue if they are vritually certain that they would win before they ever filed a complaint or took a shred of discovery.  You'd also create a situation where wealthy plaintiffs would be more likely to sue then poor ones, because the wealthy could afford to take a gamble, while the poor could not.  Why does that system seem more fair to you?  With some exceptions, everyone in this country pays their own legal expenses.  Anyone can sue anyone else for anything they want at any time.  As Cirquerider correctly said, the defense against the financial consequences of litigation is to buy liability insurance- not to skew the system in favor of defendants.   

People don't get to take free shots at some sort of lottery.  You can't just make stuff up in a complaint.  You have to have a reasonable basis for everything you allege in a complaint, or the court can sanction you.  But having a reasonable basis for things in a complaint is very different from disagreeing with the plaintiff's version of what happened or what the defendant's duties are. 

Quote:

Originally Posted by stevescho 

 

My stance?  I'm not telling you a "stance"?  Law is what it is.  This ad hominum argument of calling the law "my stance" and "wildly off center" - hey, if you don't like it - elect someone else to your Supreme Court or go hog wild like Colorado and pretend you can legislate away inherent risks.

 

Ski law everywhere else (besides Colorado) is very simple - you ski, you assume all inherent risks, including the negligence of others, so you can't sue.  You don't like it, don't ski, or go to Colorado. 

You're absolutely right. The law is what it is, which is why you sound so silly when you say things like the law on assumed risks is very "simple" or that Colorado is "pretending" to legislate away inherent risks, or that someone "can't sue."  You can try to ignore the law you don't like, but, as you said yourself, the law is what it is.

Originally Posted by CTKook 

 

 

I'd suggest a lot of people do some background reading on some of these legal terms.  I know you're asking about assault, but other posters clearly need to bone up on negligence and on what a waiver is, for instance.  If by assault you mean intentionally punching someone, or say intentionally slamming into them at high speed because you're super-pissed and want to teach them a lesson, those are both clearly not encompassed within the activity of skiing and clearly could give rise to civil and criminal liability.   Bumping someone in a skiercross by contrast would not be actionable even if intentional because of the nature of the event, even if it gets you dq'd.  At the end of the day a lot of it boils down to common sense.

 

Please do not chastize others for improper use of legal terms if you are not going to use them correctly yourself.

Civil assault = intentionally placing someone in immediate fear or apprehension of an offensive contact.

Civil battery = intentionally causing an offensive contact.

Thus, intentionally punching or slamming into someone is not assault, it's battery. 

And, by the way, shazam was right on the money with how a waiver works.  Waivers are designed to absolve parties from liability for negligence, but they do not automatically and absolutely accomplish that goal.

Quote:

Originally Posted by MikeN2UZU 

 
 

Any why would anyone support forcing plaintiffs to pay defendants' legal bills if they lose?  If you did that, you'd be setting up a situation where plaintiffs would only ever sue if they are vritually certain that they would win before they ever filed a complaint or took a shred of discovery.  You'd also create a situation where wealthy plaintiffs would be more likely to sue then poor ones, because the wealthy could afford to take a gamble, while the poor could not.  Why does that system seem more fair to you?  With some exceptions, everyone in this country pays their own legal expenses.  Anyone can sue anyone else for anything they want at any time.  As Cirquerider correctly said, the defense against the financial consequences of litigation is to buy liability insurance- not to skew the system in favor of defendants.   

Just a quick note that it does work this way (essentially) in Canada... Losing party may have costs awarded against them.  Lots of mitigating factors, not simple, but basically...

Quote:

Originally Posted by MikeN2UZU 

 

Please do not chastize others for improper use of legal terms if you are not going to use them correctly yourself.

 

Civil assault = intentionally placing someone in immediate fear or apprehension of an offensive contact.

Civil battery = intentionally causing an offensive contact.

 

Thus, intentionally punching or slamming into someone is not assault, it's battery. 

 

And, by the way, shazam was right on the money with how a waiver works.  Waivers are designed to absolve parties from liability for negligence, but they do not automatically and absolutely accomplish that goal.

I was trying to use plain english to make clear that intentional actions like punching someone would give rise to liability and are very different from behavior like just skiing fast.  Peck at my using a relatively clear definition, provided by me in the same sentence, to define the generic term of "assault," rather than breaking out 1L tort class terms if you like.

I never said waivers automatically absolve people.  Don't put words in my mouth, it's not just unkind in can seem like you're deliberately clouding things which I'm sure you don't want to do.  I noted states differ, minors, yada yada.  Peck, peck peck. 

Negligent supervision in Lackner?  Give me a break. Meantime that school district has to pay their legal fees somehow.  I know, the CA taxpayers are pretty flush right now, so no big deal, right?  Fun and games.

Quote:

Originally Posted by shazam! 

 

 

Just a quick note that it does work this way (essentially) in Canada... Losing party may have costs awarded against them.  Lots of mitigating factors, not simple, but basically...

 

Yep, England and continental europe too. 

While the cavalier attitude of "hey, just buy more insurance" to guard against nuisance suits irks me, I'm actually sympathetic to the empowering aspect of the American approach to legal fees, too.  If judges were more aggressive in sanctioning attorneys and imposing opponents' legal fees on litigants as sanctions for frivolous litigation, I think our system actually could work pretty well.  It's clearly not there now.

No numbers to denote paragraphs Cirque, sorry bro.  Let's see if the paras work this time.

"If by assault you mean intentionally punching someone, or say intentionally slamming into them at high speed because you're super-pissed and want to teach them a lesson, those are both clearly not encompassed within the activity of skiing and clearly could give rise to civil and criminal liability."

Mike, this is what I wrote.  The term assault is clearly used generically, with examples given to make clear what I was talking about, and with my being clear that both civil and criminal liability could result.  That is not an incorrect usage, just not a technical legal one.  To get super-technical, since I was talking about actions that could give rise to both civil and criminal liability, I could have used 20 or 30 different legal phrases and still not have been exhaustive, since as you should know individual jurisdictions use different terms.  Peck away my friend.

As regards waivers, Cirque had said that "Waivers do not defend against liability arising from negligence...an individual cannot conduct himself in a negligent manner that results ininjury and be indemnified by some sort of "assumed risk" exemption."  It was a pretty unqualified statement.  If he wants to clarify that what he really meant was that waivers can and do defend against negligence claims, but that they should be tightly drafted and that of course individual states differ in how strictly they construe those documents, he of course can provide that clarification.  I didn't think using his name again, in saying people should bone up on negligence and waivers, was needed or productive, which is why I was opaque. 

If this forum is to have any value, though, people should feel free to point out baldly incorrect statements, particularly ones that would work counter to many interests in the sport of skiing.  So, I'm sorry if by being opaque some people thought I was referring to Shazam.  I'm sorry to quote Cirque here again, if I read what he said incorrectly and he really meant that  waivers, properly drafted and entered into, are enforceable and in accordance with sound public policy in all but a few states, then I'm glad we can clear that up...but that wasn't what he wrote. 

I'm glad you're rich enough that a "few thousand" dollars incurred by a school district defending a meritless suit means nothing to you.

BTW, I have had loved ones suffer serious accidents.  Stuff happens.  What made you think I hadn't?  No relevance here anyway.

Quote:

Originally Posted by stevescho 

 

Well skier_j:

 

A few years ago, I was robbed and then beaten by three young african americans at gunpoint.  But it has to do with skiing being a sport, and my knowledge of ski law and its application long predates that robbery.  And no, the assailants weren't caught.   And no, I don't have any doubt whatsoever about our legal system; no problem of any kind.   

 

My stance?  I'm not telling you a "stance"?  Law is what it is.  This ad hominum argument of calling the law "my stance" and "wildly off center" - hey, if you don't like it - elect someone else to your Supreme Court or go hog wild like Colorado and pretend you can legislate away inherent risks.

 

Ski law everywhere else (besides Colorado) is very simple - you ski, you assume all inherent risks, including the negligence of others, so you can't sue.  You don't like it, don't ski, or go to Colorado. 

 

 

You are right, on reflection, it was never my intent to attack you personally.  I apologize.

I do find it odd that you have such a black and white interpretation of the discussion at hand.  My experience tells me that this subject is far from monochromatic.

J

"This is silly.  I know what you wrote.  You're missing my point.  On the one hand, you've criticized others for their imprecise use of legal terms. Then, a couple posts later, you did it yourself.  I don't care whether you've defined the words in a way that suits you or not.  That's obnoxious.  That's my pointQuote:

Originally Posted by MikeN2UZU  "

 

No, I think it's clear that I was using the term "assault" in reply to a post and as you know a full breakdown of all the legal terms for the possibly relevant intentional torts and related crimes, including "mens rea," maybe even a few other foreign language terms, maybe a paragraph on gross negligence vs. recklessness, would have detracted from the clarity of expression in that context. 

If you or Steve or Shazam have a link, preferably online, to a favorite summary of some of this stuff, including clear definitions of terms, I think it would actually be valuable for people to have though.  Mea culpa on my being a dick (more foreing language!), but in all seriousness a lot of the confusion in this thread is I believe from people reading terms like recklesness and negligence interchangeably.  Which in technical legal terms, or as regards the underlying public policy issues, they are clearly not.   

The idea in your last paragraph I think would be far preferable to where I'm afraid the sport is otherwise headed.  Resort-based skiing is becoming a rich man's sport for a host of reasons anyway, and while that type of system would still be wasteful and prone to all sorts of abuse and fraud it would be workable and predictable in its own way.  It could actually be funded through the ticket price.  Make it impossible to sue resorts or their employees, or manufacturers, as well for any skiing or riding related injuries under the same system while you're at it.  Paradoxically this would likely allow long-term for better safety, not worse, as a pleasnt side-effect.   

My concern would be that this not be extended to other similar adventure sports or other sports with substantial risk elements.  Climbing, bc skiing or riding, mtb, bmx, skateboarding, paddling, equestrian events, etc.  The added cost of this extra insurance would impact participants in many of these sports more (maybe not the horsey set), and worse the psychological dependence on that type of system would undercut some of the life-lessons of responsibility and independence some of those sports provide.  A uniform federal law saying that for any of these activities you just can't sue anyone, period, would imo be best.  If they can fit all the other stuff they already do in under the commerce clause they can work that one in, too. Highly unlikely for that to happen of course.   
 

http://sports-law.blogspot.com/2004/12/skiing-and-legal-liability-tale-of-two.html

In terms of online resources, this is not ski-specific but is a cool blog.  Wikipedia has good general definitions that need to be read in the context of skiing being a sport.

Also patrol-relevant, it's good to remember that if you are in a collision, smart actions immediately following are not just smart but also huge in defining the perception of any collision as just that, a sporting collision, and not a case of the uninjured party being viewed as unsympathetic and the injured party automatically being viewed as a "victim" rather than simply as an injured skier (still deserving of sympathy).  The normal stick around, summon patrol, stay calm and cool, don't admit fault or get into a discussion of the accident with the injured party, etc. 

I stumbled on this thread while trying to figure out remedies for a recent accident I was involved in.

I was in an advanced snowboard class at a popular Colorado resort last week, and I was hit by another boarder (13 year old on a family vacation) in my class who was not advanced, and wiped out at least 3 times each run.  He was told several times by the instructor to control his speed.

I was downhill from him, and did not even know he was behind be until I was hit.  I fell, and knew immediately that something was terribly wrong with my leg, as I could feel my kneecap on the side of my leg, and had never been in so much pain in my life.  The Ski Patrol showed up, did a brief exam, and were finally able to get my leg into a splint for transport down the mountain.  Once at Ski Patrol headwuarters, they were shifting me fromt he sled to a gurney, and my knee cap "popped" back into place.  It still hurt like hell, but was much better that when it was dislocated.

I was then transported to the ER, where X-Rays were taken, and did not show any fractures, and was diagnosed with a lateral patella dislocation with a likely torn retinaculum. I was referred to an orthopedist, and have an appointment tomorrow.  I have done a lo of research in the last few days, and the general conclusion is that surgery will likely be needed, and I will not be able to participate in physical activity for 4-6 months.  I am a recreational triathlete, and am registered for my first Ironman in September of this year.  I think it goes without saying that this accident will negatively affect my quality of life for at least the near future.

The boys father called me, and was very appologetic, which was appreciated.

I had originally said to myself that I would like for the family to take care of any out of pocket medical expenses, and that it was an accident, so there would be no point in a lawsuit.  Then I began to think that if somebody had been driving a car out of control and in a wreckless manner, and injured me like this, you bet your ass I'd sue them.  I keep asking myself what the difference is, and I can't think of any.

I would appreciate any thoughts.

THIS IS NOT LEGAL ADVICE

This situation is not analogous to just being out for a sunday drive and having someone hit you... this is more like signing up for a track day and having some else hit you... you have already signed up for a high risk activity... recklessness is, in this case, a legal term, and the other boarder may (probably) not have risen to that standard.

It will cost a bunch ($$$) to start this lawsuit

The discussion we have been going over for the last few pages was about whether it was "possible" to win a suit against another boarder/skier.  This is quite different from the question of whether you are likely to win.  There is a good chance you will not, no matter if you are in Colorado or not.

From the sounds of things, you will not be out of work.  This would mean that there are no pecuniary damages.  With medical costs already taken care of, no loss of income and no "permanent disability" you are facing an uphill climb on damages.

You do not yet know the prognosis, so don't put the cart before the horse, in any case.

Injuries happen.  Accidents happen.  Do your physio.  Get well.  Get back on the board next season.

^^^Good advice, and good luck on your PT.

Puerly theoretically, and in no way speaking to you directly, and definitely not legal advice, I don't think the typical teenager is loaded financially anyway.  One case up above dealt with attempts to get around that and find another way to shake the money tree.  In that case it didn't work.

Finally, since you're into triathlons talk to your local bikeshop about how the sale of bmx bikes has been going,  (Actually don't it's not funny.)   While the legal issues they've been dealing with are more unintended consequences of well-intended lead content restrictions than anything else (and temporary), that's one quick snapshot of what life in a hyper-litigious, hyper-legal society can be like.  Recreational opportunities can go away real quick.