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Skiers Responsibility Code Question - Page 3

post #61 of 67
Originally Posted by Abox View Post


What, did you slam into someone from behind in CO and get sued?  You sound like those deadbeat dads who rail against the injustice of laws forcing them to support their kids.

Exactly!!!  I'm no shrink, but I believe this is what some would call, ummm....an obsession?

Since you can't swing a dead cat without hitting a lawyer in the USA, I'll just flat ask the next one I run across (figuratively, of course).....in Idaho.

post #62 of 67

The Montana code, which I guess is a supplement to the skier responsibility code, reads like a document by committee. I don't think you can legislate what a person thinks, or is aware of. weird. I'd wrap the skier responsibility code inside the Montana code and toss the combined mess in the circular file.

post #63 of 67

The run in the original posting is more of a transit run than anything else.  It moves thousands of people from one lift to another.  There is no room for "safe" stopping space except hitting the brakes hard, and then you'll get hit from behind on a busy day.  That's just the way it is, plus no one wants to end up walking across the flat section.


The skier following the boarder might be legally wrong.  The snowboarder was wrong in the way she thought only of herself and failed to get out of the way of the many people coming behind her.  We all know the Code, and we all have enough sense to get out of the way when stopping if at all possible.

post #64 of 67

Your fault but I would of done the same thing.    about 15 years ago I was BC skiing on Berthoud pass, skiing the Creek bed, at the bottom of the creek bed you come down and around a couple of trees and the trail narrows to about 2 feet across, so there is only ONE place to exit, the rest was blocked off by dense brush and logs (and it's blind and comes up real fast).   Anyways,  I came around the corner one day and two snowboarders were sitting side by side at the trail entrance, eating LUNCH!  I was going way fast and my friend was right on my ass,  I lifted up one ski and shot between the two of them and cracked one of them on the head with my ski poll, (not on purpose).  My friend crashed behind me trying not to hit them.   I got out to the road (100 feet or so) and the two boarders came walking out, one was holding his head.     He actually looked at me and shook his head, as if admitting where they were sitting was just stupid (without saying a word).  I shrugged my shoulders, in a "I'm sorry, but really no way to avoid what just happened" motion and we stood side by side and hitched another ride to the top, never saying a word.    It was a moment where we both screwed up, him being there and me not taking a dive instead of skiing between them.   If your on this website bro, sorry man!    Anyways, $hit just happens sometimes.    (keep in mind that this was backcountry skiing, and Berthoud was not an open resort at the time).  

post #65 of 67


Originally Posted by LiquidFeet View Post

I don't understand your view.  Are you a lawyer?  If so, please explain where I'm wrong here.  I read the following...


"(4) A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing. Nothing in this part may be construed to limit a skier's right to hold another skier legally accountable for damages caused by the other skier."...


...to mean that a skier accepts legal responsibility for injuring others, including if that injury results from inherent dangers and risks of skiing.  There is no limit to an injured skier's right to hold another person legally accountable for hurting him/her while skiing.


I can't see how you get the opposite out of this.  Please explain.


I just did explain:  Read my last post.  What you quoting doesn't create a right.  No way.


Instead, it is a statement of Primary Assumption of Risk; not that it needs to be stated; it is common law.  As for your misinterpretation that the boldface creates a right to sue, you're wrong.  Collisions are an inherent risk; skiing is a sport; you simply can NOT recover damages for inherent risks.  What that statute says, is there is no limit to an injured skier's "right", but that right is by common law limited to intentional acts and in rare cases "non-inherent" risks (as in alcohol-impaired skiing), not negligence.  If (outside of Colorado), you can prove that in a collision, one of the parties intended to collide, or that such collision was caused by impairment, or skied blindfolded or backwards in such circumstance where the was prior knowledge of the heightened risk - well maybe.  But even there, your chances of getting anything more than nuisance money, is nil - not only because of how laws are interpreted, but also because they (lawyers) know the law better than you, and amongst the potential clients (on retainer, by the way) - they can think of a thousand dog bite cases that have a better chance of collection.  Why on earth would a lawyer waste a second of his time on some frivilous filing, with no chance of collection, against a defendant with either a) no money or insurance, or b) if they have insurance - their insurance company's lawyers will crush you on motion, and could lay big time costs on your lawyer.


There is one thing to know, however.  If you ARE sued, you MUST timely reply/respond (or "show up", in the case of small claims court - where just about anything goes).  Failure to respond is the one exception that can and often will result in judgement.  If you respond properly (meaning you have a third rate lawyer who could pour "P" out of his ski boot without reading instructions on the heel), there is nothing to worry about; well, other than nominal response costs, probably under $1,000 bux.


And no, I am not from Colorado, I have nothing to do with collisions either involving myself or anyone I know or am related to.


So if you disagree with me - why don't you pony up for a legal research subscription, provide the Westlaw citations and published cases, and we can go from there.  Otherwise - your google search comes up empty.

post #66 of 67

Hey, why the big guns?  I was just asking ....  not attacking you.  I didn't mean it to come across that way, but perhaps my wording led you to think I was ready for a fight.  Far from it.


I gather that you aren't a lawyer, but you still have experience in these matters, thus your references to specifics.


I suspect that I've just read the thing wrong.  

post #67 of 67
Originally Posted by stevescho View Post

...Collisions are an inherent risk [of skiing]...

IANAL, but from what I have read this is not true in general.


From some case summaries here (http://www.skilaw.com/cases.html):


A CA case (http://www.skilaw.com/cases_dinh.html):




In order to establish liability, Camtu Dinh was required to show that the insured, P. K., was snow boarding with a reckless disregard for the safety of other skiers and snow boarders. A reckless disregard is shown when “The actor does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Lackner v. North, 135 Cal.App.4th 1188, 37 Cal.Rptr.3d 863 (Cal. App. 3rd 2006).  ...The court held that North owed Lackner a duty of care, that his conduct increased the risks of the activity to a level beyond that necessary for the vigorous participation in the sport.


The holding in Lackner court follows the California doctrine first articulated in Cheong v. Antablin, 16 Cal.4th 1063, 946 P.2d 817, 68 Cal.Rptr.2d 859 (1997) which held that a participant in an active sport breaches a legal duty of care to other participants--i.e., engages in conduct that properly may subject him or her to financial liability--only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. Cheong v. Antablin, 16 Cal.4th at 1067.


Likewise , in Freeman v. Hale, 30 Cal.App.4th 1388, 36 Cal.Rptr.2d 418 (1994), the Court of Appeals articulated the test by holding that “conduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport." 36 Cal.App.4th at 1394, 1396, 36 Cal.Rptr.2d 418.


These three ski cases follow established California law. Reckless conduct is shown when the actor intentionally commits an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. New v. Consolidated Rock Products Co., 171 Cal.App.3d 681, 217 Cal.Rptr. 522 (Cal.App. 2 Dist. Aug 26, 1985). The New court set the test for determining if conduct rose to the level of recklessness. Plaintiff must show that defendant had: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. Id. at pp. 689-690. In order to establish constructive knowledge, it must be shown that a "reasonable person under the same or similar circumstances as those faced by the actor would be aware of the dangerous character of his conduct." Id. at p. 690 quoting Chappell v. Palmer, 10 Cal.App.3d 71, 88 Cal.Rptr. 710, Cal.App. (5 Dist., Jul 30, 1970).


And one in Michigan (http://www.skilaw.com/cases_rusnak.html):




While skiing at Boyne Mountain Ski Resort, Matt Walker, the uphill skier, collided with Toni Rusnak, the downhill skier. Defendant Walker contended that under Michigan's Ski Area Safety Act (""SASA"), MCL 408.321 et seq., he could not be held liable because skiers assume the risk of a skier-skier collision. Plaintiff Rusnak claimed that Walker should be liable because the SASA also imposes on each skier a duty "not to act or ski in a manner that may contribute to his or her injury or the injury of any other person."


The Court resolved this contradictory language by striking a balance. It recognized that while skiing, "sometimes accidents happen." However, "if it can be shown that the collision resulted from a violation of the Act [by breaching a prescribed duty], than the violator is to be held liable." Thus, a skier in Michigan assumes the risk of being hit by an uphill skier, but if the uphill skier was negligent, he or she may still be liable.


And another one from CA (http://www.skilaw.com/cases_lackner.html) (actually, it's also referenced in the later case above):



Lackner, an expert skier and long time patron of Mammoth Mountain, alleged that North acted recklessly by skiing in a tucked position. Id. North filed a Motion for Summary Judgment asserting that Lackner assumed the risk of collision by participating in skiing and that he did not ski recklessly while descending Cornice Bowl. Id. North asserted that an expert skier, skiing on expert terrain and at a high rate of speed is part of the sport of skiing. Id. at 1198-99. The court held that a triable issue of fact existed because North was an expert snowboarder, aware of the fact that skiing fast into a flat area where people congregate is likely to create a dangerous condition. Id. at 1201.




Skiing fast into a resting area may be reckless conduct. Expert skiers may be held to a higher standard because of their knowledge of skiing.


There are also a bunch of cases from Colorado, although many of them were settled out of court.  (I find it unlikely they would settle out of court for large sums of money if skiers were essentially immune to liability in skier-skier collisions.)


Also from (http://www.sfpslaw.com/index.php?page=Blog):


It is clear that the general intent of Chapter 4169 of the Ohio Revised Code is to protect ski resorts from liability to skiers and snowboarders for injuries arising out of the inherent risks of the sport. After all, Chapter 4169 is titled “Ski Tramway Board,” and falls within Title 41, which is entitled, “Labor and Industry.” However, one particular section of Chapter 4169 spawns uncertainty about whether the Ohio General Assembly also intended to impose several statutory duties on skiers and snowboarders to others sharing the slopes. One Ohio court has ruled that this section does in fact impose such duties.

The Ninth District Court of Appeals held in Horvath v. Ish (9th Dist. 2011), 194 Ohio App.3d 8, 2011-Ohio-2239, that the defendant snowboarder, who collided with the plaintiff skier, owed a statutory duty to skiers, snowboarders, and any other person he would encounter while snowboarding, to refrain from colliding with the other person. The Court recognized Chapter 4169’s general intent to immunize ski-area operators from liability for injuries arising out of the inherent risks of the sport, but pointed to Section 4169.08(C) to substantiate the defendant snowboarder's duties.

Section 4169.08(C) states, “A skier shall have the following responsibilities,” and proceeds to list various responsibilities. Some of these responsibilities include: (1) knowing the range of the skier’s ability and skiing within the limits of the skier’s ability; (2) maintaining control of speed and course at all times; (3) refraining from acting in a matter that may cause or contribute to the injury of another person; (4) refraining from causing a collision with any person or object while skiing; (5) obtaining assistance, notifying the proper authorities, and not departing from the scene when involved in an accident with another person who needs medical or other assistance. Note, a snowboarder is also defined as a “skier” by the statute.

It is important that you, as a skier/snowboarder, keep these duties in mind this winter as you hit Ohio’s slopes. An innocent collision on a black diamond could very well place you on the wrong end of a civil lawsuit with an uphill (pun intended) battle to fight. The reliable assumption of the risk doctrine appears pierced by R.C. 4169.08(C) in the skiing context and may not offer protection.


It is possible, of course, that some other states would treat such cases differently.  Again, IANAL, just someone in the industry.

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