Originally Posted by Matthias99
It's a fine line. If the resorts followed reasonable procedures for terrain assessment then they should not be responsible. But unless you're going to say that resorts have no legal responsibility at all for doing avalanche control, there must be SOME standard they are held to.
Did you look at the case I posted early on (Medina v.)?
The design vs. maintenance standard is very instructive here. If you build an interstate through the mountains, cutting steep, loose rock walls in the process because a river runs down the same narrow area as the proposed road, then can you be held liable for a rock slide that causes a fatality based on failure to maintain? When design is expressly immune to liability, i.e. the design decision and subsequent permitting to carve a highway in a canyon by a river cannot be cause for negligence alone, then you have to look at negligence for failure to maintain.
If 'maintain' means that the original design is kept in the same condition as designed, then can a rainfall induced rockslide be a maintenance failure when they have occurred throughout the lifespan of that road (Watch For Falling Rock says the sign)? Arguably, the design of the road itself creates the condition of risk, not the maintenance of keeping the road in the original design condition. And the road was built there rather than across less rugged terrain further north because it does things like access a bunch of ski resorts.
So porting that (continually tested) example to a ski resort, which by definition designs access to terrain on steep mountains with variable conditions hour to hour, day to day and so forth, making it prone to avalanches, we can easily infer that an avalanche can happen in the fully maintained design state, and in fact, they do. Part of the Medina case was failure to warn, failure to close the road....something that ski resorts do as a matter of basic practice. Reasonable procedures doesn't cut it. What is reasonable? That standard is designed for court interpretation on a case basis.
The design / maintenance split makes a lot of sense. A resort operator would always bear liability for failure to maintain its facilities, but never for design (physical facility design is typically regulated by code anyway). Design immunity would exclude snow as a maintenance condition. You can't design snow, but you design a resort where there is as much of it as possible in conjunction with vertical rise and other features, you warn people of the risks, and provide extensive safety patrol.
I'll be the first to admit that the design exclusion is hard to overcome, but if an operator receives a permit, constructs and passes code inspection, then are they truly to be held liable for some future condition that adversely affected their design, such as content, frequency, and quality of snow? Or erosion of a slope over time? Reduced density of trees due to beetle kill? Climate change? Ski shape change? Snowboards? Rope ducking? Bro-Brah?
How about that old lift that boards and deposits really fast, but rides really slow, and knocks people down at a rate great enough that a liftie holds each chair back to make it smoother? Isn't it failure to maintain that lift by not upgrading to a detachable, especially if it causes statistically more injuries? Or is that a design issue that is immune?