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nobody's "uphill" in many accidents

post #1 of 50
Thread Starter 
that "watch where you're going" is real interesting discussion, but guess what? when you're in an accident, you are in exactly the same place as the other skier...or pretty darn close.

Collisions between skiers, especially skilled people, are just that - - - - accidents. They didn't (or couldn't) see you.

And its a sport with inherent risks - - - not a highway - - - among them trees, steep hills, rocks,ice, and moving people. In most states (but not CO, unfortunately), when you participate in sport you assume these risks - including the risk of other people's negligence regardless of their ability or speed. There are exceptions (doesn't apply to hunting, or drug/alcohol caused incidents); but you have to accept it as part of the game.

Use common sense, stay in shape, and keep the lawyers off the mountain. [img]tongue.gif[/img]
post #2 of 50
Steve, here are some sites to skiing law to help you out:



I suggest reading the law of your State, since it appears you do not have an understanding of the current state of the law.

post #3 of 50
What Maddog said ... as a former patroller I can tell you that working a collision accident is not very fun. If Shane McKonkey hits Brad Holmes in an O/B bowl while filming ... it's an accident. When one boarder / skier collides with another in bounds and medical issues ensue. Someone is going to be found responsible. There are indeed times when two skiers collide and both are equally at fault. I can't think of an occurance when it happens and there is no fault ...

As a side bar ... I was hit twice last year. Both times from behind by riders who didn't give me enough room and didn't call out their approach. Both of them basically said I was at fault for turning in front of them. One lost their pass for skiing recklessly as a patroller observed it. Both of those incidents happened on a flat blue run out to a lift that serves blue / black terrain at Mt Hood Meadows.

What the heck ever happened to 'on your right' ?

After the responsibility code, my personal rules when overtaking other skiers are ...

give them some room (some need more than others, after all we are usually the better skiers on the hill right!)

let them know I'm there (on your right!)

lastly, what happens to them after I pass ... am I screwing up their line / cutting them off ... if so, I change my line or let them through first.
post #4 of 50
Steve: the only two scenarios where what you say is legitimate is where two trails converge and BOTH skiers have to see and avoid and, when two skiers are playing dogfight.

The other (95% of) the accidents your job is to avoid the skier below you..... PERIOD! If it breaks your timing or defeats your selected line .... Tough!

If you are skiing with "correct" form, you are looking down the hill slightly countered. If you are below, you can't see what's coming from above and if you look up hill you are improperly weighted, probably the most common cause of a fall.

By the way, "Track right/left" used to be part of The Code.
post #5 of 50
The skiers/boarders code of ethics is something to many people think doesn't apply to them , And I hate to say this but I find mostly boarders on that side of the fence. This is one reason I shadow my daughters like a hawk when on the slopes , even still a choice few still become the victims of "phsyco dad"
, what really gets me is even after they have been subjected to an in yer face rant some still tell you off and some even go up and pull the same stunt. One thing I do notice is some areas are worse than others for this behavior . Yuki , you nailed it bud , if your the downhill skier/boarder you have the right of way....end of story.
Oh ya if two skiers end up hitting each other sideways one or the other was the uphill skier at one point and its his resposibility to leave room for the other.

[ December 10, 2002, 08:04 PM: Message edited by: Leeroy ]
post #6 of 50
when you're in an accident, you are in exactly the same place as the other skier...or pretty darn close.

Am I correct in understanding that what you're saying is that by the time you hit somebody you are no longer uphill from them? :
post #7 of 50
Mal@hood - I just don’t share your views that “Someone is going to be found responsible” for an inbounds collision with medical problems.

Maybe on your mountain, but not mine. Quite often by the time a patroller arrives on scene one you’ve lost most of your witnesses and often one of the colliding party. People just don’t stick around to sort things out. An APB for a 18 year old male with goggles and a yellow jacket who was on Triumph 20 minutes ago is unlikely to get results.

We are not trained in accident investigations, certainly not to any extent that would hold water in court proceedings. If I respond to a collision I fill out a 3-4 separate forms – nowhere in the form is there a place where we try to establish who was responsible for the accident. We also train every year in filling out paperwork, we don’t assign responsibility period.

Almost every week we get a call from people trying to track down the person who pasted them on the slow zone. You feel for them, but the best we can do is give them a copy of all the paperwork associated with the accident and let them pursue it – assuming that we had the other party to collect information from.

Locally, I have not heard of anyone successfully pursuing another person for damages incurred on the hill. On the other hand, everybody goes after the resort.
post #8 of 50
Originally posted by Leeroy:
The skiers/boarders code of ethics is something to many people think doesn't apply to them , And I hate to say this but I find mostly boarders on that side of the fence....
I was mulling the same thing over, last night.
But I have an explanation for that.
Simply said, how many days or hours have anyone of us two plankers spent on instructions?
I have spent at least one week every year from age 6 to age 16.
My instructors were teaching me not only how to ski (that is, the technique) but also how to ski, that is how to behave in the environment. It takes years for the lessons to sink in.
How many boarders have had more than a cursory introduction?
And nowadays, how many skiers had?
This said, it's to the maturity of a person to understand that
while skiing the mountain (or the slope) does not belong totally to self.
post #9 of 50
What a shame that the US has such a financial blame culture. So if you hit someone on a US ski area there is a chance there could be serious financial ramifications for you.

In New Zealand, you have a collision, you might/might not get pissed off with each other, you go to first aid/hospital if required and get over it. No possibility of being sued or of suing the ski area....or no examples that I am aware of anyway.

On the other hand I am sure that if the legal system in NZ allowed it then people would chance their arm by suing just as they do in the US to get some financial benefit from an accident.
post #10 of 50
Thread Starter 
Hey Maddog and anyone else:

I know the law in my state (and most others) kinda well. That website is put up by a PI lawyer in colorado who, in my opinion, chases ambulances making innocent people miserable. He understands law and misquotes it anyway. I wish he wouldn't put crap like that on the web. So here's some truth, dude:

I'll spare you most of it - torts and duties - but the best recent case on the affirmative defense of primary assumption of risk is Cheong v. Antablin (~98 or so, Cal. app. 4th?, oh who cares) - anyhow, its two lawyers who ran into each other, one admitting he was uphill and lost control. The supreme court determined that there was no duty to avoid such accidents, that they are inherent to the sport, and as a matter of law, it is not a legal cause of action for anything that is part of that sport, including alleged "negligent" activities (throwing elbows in basketball). This is really not a gray area in law at all - and especially not for a "risk" sport like skiing. It doesn't matter who get's hurt, who's "fault" it was, how "fast" they went, how crappy a skier the other guy was, how "bad" anyone was hurt - or even if they died. (there's an extreme case - in which an instructor in mountain climbing "neglected" to properly anchor the top rope - student fell and died - guess what? no negligence and no money). Simple - its a sport, there's no duty - so no money.

Actions that are not part of the sport, or intentional, are not assumed risks (stabbing someone with a ski pole, for example).

What this assumption of risk means is that you don't get to take it to a jury, it gets dismissed via a written "motion". Every state, except colorado (florida maybe, but not much sno there, dude). I guess there is enough activity to keep a few lawyers (both plaintiff and defense) busy - but not much - the only thing they're doing is wringing nuisance settlements out of insurance companies.

The reason for this kind of treatment of sport is that seemingly negligent activity (like "going fast") is part of the thrill and inherent nature of said sport, any imposition of negligence and torts would "chill" (def: alter the fundamental nature of) the activity and its just not allowed. [img]tongue.gif[/img]
post #11 of 50
I don't know, maybe we're on the same page but I don't think we are. If I'm not mistaken Co. sent a kid to prison about 1.5 years ago for hitting and killing another person on the slopes. He was the uphill. Anyone know which incident I'm speaking of???

RockSkier Said:

What a shame that the US has such a financial blame culture. So if you hit someone on a US ski area there is a chance there could be serious financial ramifications for you.
People try to sue here if they look at each other wrong. It's ludicrous and a complete waste of taxpayer money. I think LAWYERS ought to be held financially responsible if it's found that they're persuing a frivilous lawsuit. Maybe then theyed think twice about representing some of these suit happy idiots. For Christs sake people. . . Coffee is SUPPOSED to be hot.

[ December 12, 2002, 08:33 AM: Message edited by: ski2xs ]
post #12 of 50
What the heck ever happened to 'on your right' ?

It is apparently "uncool" to use civil communication amongst the jibber crowd, in fact they are way to stoned, DUDE, Wow sorry I just hit you like wow man. Instead of having the slopes turn everyone "sue crazy" let's just pass a law to eliminate incompetent snowboarders from the slopes altogether. Yes, IN FACT, BAN all snowborders!!!
Never liked 'em, never will. And I don't give a rats lick about talent and big pants and the like. The fact is, is that these doped out punks can't "hang" for even one run, and when exhausted they pack together like fools lined up convienently on there knees in the middle of the slopes awaiting punishment.
This is when I really start to enjoy the benefits of ski poles: Discipline for the troubled youth that need correction.
I plan on a crackin' a few domes this year, how 'bout you. [img]graemlins/evilgrin.gif[/img]

[ December 11, 2002, 09:35 PM: Message edited by: Atomic World ]
post #13 of 50
Thread Starter 
Hey ski2xs:

Just another example how the 1 case out of 10,000 (and a horrible decision at that) is played up in the news as some kind of precedent. Well, OJ got off....maybe we should let every slasher off...no matter how much blood evidence he slopped around his car, apartment. This is why questions of law go before judges, not juries.

Truth is, Nathan Hall did a mere 10 days in a county jail on a misdimeaner - for an offense that should never have been charged - he was victimized by an overly-aggressive DA who took his case to the State Supreme Court. Remember, he won motions of dismissal in several lower courts. The Amicus brief for that case was prepared by the same kook who has that "skilaw" website. Hall was an expert skier, skiing fast at the end of the day (in fact, he was a lift operator, it was the last run of the day), with very few people around, and unfortunately was the "uphill" skier when he encountered a group of idiots from England stopped in the middle of the hill just beyond a knoll.

The specific facts of the case don't matter - skiing is as much a contact sport as soccer, not because contact is intended - but because contact is possible and reasonably foreseeable in almost all sports with coparticipants. It is not a crime nor a tort - and the reason you don't see 10,000 people getting off in court is because they are not charged or legally sued in the first place.
post #14 of 50
Whether or not you can be held responsible for hitting someone is irrelevant. If you are overtaking someone and that person turns exactly where you are turning when overtaking them it is your fault. Take some ********* responsibility for your actions.
post #15 of 50
Thread Starter 

No...you just don't get it. Let me explain further (none of this applies to the wacky decisioning in CO). Sport is different from non-sport activity. Normal activities, non-sports, like driving a car - have what is termed a "reasonable person" standard or "duty". You have to look both ways, come to full stops, and if you don't - yesirree - you are held liable both civilly and criminally. You carry insurance for this and you are covered.

In sports, and other assumed risk activities, you do not have to be reasonable...actually there is no "duty". You are only precluded from doing things that are intentional and outside the realm of that sport. (for example - going fast is intentional, but it is part of skiing, so it is allowed; similarly a late hit in football is often intentional, but is still within the realm of activity in that sport. A punch is not - stomping on someone's head after a whistle is not). You don't carry insurance for this. If you injured someone - uphill or not - your insurance company would not pay (even if you wanted them to) and believe me, the types of injuries in skiing that people whine about (paralysis, death, maiming, multiple permanent leg injuries) are not the sort of thing most people can "take responsibility for", as you say, out of their pockets. In a car accident, these would be million dollar claims and long prison terms. Come on now, don't you think that's a bit nuts?

Skiing is a high risk activity, with alot of people on the same mountain at the same time. Arbitrary institutions of "fault" based on physical positions in a sporting activity are improper.

post #16 of 50

I do agree with you completely on the Nathan Hall incident. That's kinda what I was driving at. We live in a suit happy society here in the US. The prosecutors are prosection happy in their attempts to make a name for themselves. etc. etc.

However there has to be some kind of "code" that is followed and penalties for not following that code. Uphill skiers should have the responsiblity as they have the best field of view. Downhill skiers need the right of way as they don't have eye's in the back of their heads or rearview mirrors on them.

In most sports several actions can cause a penalty for you or your team, the same should apply in skiing.

The primary, number one, core, root, first rule for ALL skiers should be "stay alert". Be aware of what is going on around you. Whether you're uphill or down. This would include the downhill skier checking over their shoulder before they go blasting across a run. We darn sure wouldn't just change lanes on the highway without knowing what was going on behind us!!
post #17 of 50
No you don't get it. I'm not talking about whether you are "legally" at fault or if you can "legally" be held responsible. If you are overtaking someone and in the course of overtaking them you collide with them and have an accident. You caused that accident. Help them up, say your sorry, and if that person is injured do what you can to help.

Why should you do that? Because it's the right thing to do.

Now lets say that I caused an accident that led to

"the types of injuries in skiing that people whine about (paralysis, death, maiming, multiple permanent leg injuries)"

I'd do what I could and if that person wanted more I'd hire an attorney to say "My client cannot be held legally responsible for John Does injuries". But the accident would still have been my fault.
post #18 of 50
Blue, I guess that about sums it up, huh?? Well said then!

I was in the Outback at Keystone three years ago having a great time with a real board-driving friend. I skied a blind hill going pretty darn fast and thought to myself 'it's too good to last', . . . .Oh no. . . . then what to my wondering eyes should appear but a ski bum like me in my headlights like deer!! I went to turn hard and I made quite a mist but I was too late, the ski bum was pissed. . .okay I'll stop now, I just couldn't, . uh . resist . . . damn!

ANYway, we all know where the sordid details go from there. Murphys law applied and when I went to turn hard the ice was just there, right underneath. It was further aggrevated by dull edges. All I could do was go down on my side and yell. Fortunately the guy heard me and made the leap for life, I was quite amazed. If he could have levitated another .5 seconds I'd of cleared him and popped back up to continue the run, but he couldn't and I didn't expect that he would because that deals with the law of gravity and that's the one I don't like. After the yard sale we picked up the left overs and made sure there were no injuries. Suddenly I had this demented Schoolhouse Rock thing going on in my head. It was all about how the same word can have different meanings and I then realized the gravity of the situation dictated that I accept responsiblity (could be another law, I don't know) The very next thing I did was give him a way to get in touch with me.

Boy was I setting myself up!! I never heard from him again.

Anyway, that was more of a story and not really anything about the thread. I think the point I was getting to is, yes you do assume a risk and accidents do happen. But just because someone is an idiot for being the downhill skier doesn't mean that they should have to suffer the uphill skiers death wish. This has been a big problem on our slopes already this year; idiots blazing down the mountain in inappropriate areas with total disregard to situations in front of them. I don't care how good those people are on the slopes they obviously don't have the mental capacity to ski well. There's only two groups of people that I feel safe enough with to desire them uphill from me. One is the masses that I get away from quickly and the other is the few that actually ski well. If one doesn't doesn't belong to either of those two groups then I don't want to be near them.

Here's some truth, dude! Maybe we here in Co. should invoke a few more laws. Maybe we should govern skiing (a sport) like auto events (another sport, and I'm not just thinking racing either). Maybe the skier (and equipment) should have to qualify in order to ski different levels. Made to take so many hours of instruction before being allowed to move up. . . I doubt the accident rate would go down and I still wouldn't feel much safer, but at least everyone would know the risks and rules.
post #19 of 50
Most of you are talking fault and trying to put it in black and white terms. Collision avoidance is the real issue to me.

I don't agree with the uphill skier is resposible period. If a person jumps out of the woods and on to the trail right in front of me I don't think I'm responsible if I happen to take out his feet with my head. There are lots of situations like that and starting off down the run directly in front of someone is another.

That being said if I'm coming down a run and have to cross to the other side or change my line drasticly to avoid something I always check over my shoulder first. I don't really care at that point if I'm downhill and therefore 'in the right' what I care about is not getting nailed. As I said in another thread about downhill/uphill skiers. You can be right in every court in the land but if all you can do is gurgle and drool with tubes up your nose than 'right' doesn't really matter.

I find a lot of snowboarders (like the one that hit me a couple of weeks ago) seem to confuse uphill skiers or being behind with having their back to you. This one had her back to me (after starting down the hill in front of me without looking) I had moved to the far side of the run and pretty much past her but she hooked a big heel side turn and came right across the run to smack into my boots. I guess I stood between her and a terrain park. She told me she was downhill of me and had the right of way. Funny how she could see that so clearly with her back to me.
post #20 of 50
Hall was an expert skier, skiing fast at the end of the day (in fact, he was a lift operator, it was the last run of the day), with very few people around, and unfortunately was the "uphill" skier when he encountered a group of idiots from England stopped in the middle of the hill just beyond a knoll.
If I remember correctly didn't Hall's incident also occur at 5:30 PM, long after the lifts would have stopped running. This area was closed and he was bombing the hill at the end of the day, when he could reasonably assume that no one would be on the hill. The people that were still on the mountain should have been cited for tresspassing. I think the fact that he admitted to having a few beers and smoking some pot, is what really hurt his cause.
post #21 of 50
The courts are set up to handle cases like this. Ultimately, they are the only ones who can determine which party was at fault. It is not the ski patrols job to do so. Usually, as mentioned earlier, the patrol will just get all parties involved to exchange information and treat any injuries. If a patroller witnesses a collission, then they may be pulled into the matter if it ever goes to court. The bottom line, take care of yourself, and expect that sooner or later a collision will occur. Almost all collissions are completely avoidable. If on a cat track, go slow and give plenty of room. Wait at the top of it until the trail clears a little so there are less people. The real problem is that there are a bunch of uptight people in the world who get pissed off at the drop of a hat. You're skiing damnit, enjoy it.
post #22 of 50
I always enjoy myself skiing, never get pissed off (almost never) [img]smile.gif[/img] I also don't go by the 'go slow' maxim. I try to go fast so no-one hits me from behind. And I'm serious. I'm not worried about expert skiers, its the intermediates out of control that terrify me. As long as all I have to worry about is what is in front me I feel secure.

Anecdote 2,from last month.

Me: Rocketing down the right side of really wide run @ Tremblant.
Race Coach: Standing just off the right side of trail, watching his class.

I see him, he sees me, and I glance right and just see his racer out of the corner of my eye flying in from the far left. If I had just 'avoided' the coach by cutting into the middle of the trail we probably would have all had a close encounter. Instead a little check, jump, and no problem. Coach was just about ready to jump himself though.

This was pretty early season when the race classes are sharing runs with the rest of us. I like as it gives me something to watch going up the chair.
post #23 of 50
Would one of the lawyers on the forum please straighten Steve_S out? Gonz?

Steve, you are DEAD WRONG! Yes, it's a risk sport. No, that "risk" does NOT excuse reckless, negligent behavior of OTHER PEOPLE, such as that of Nathan Hall, who took air over a blind roll where any reasonable person would realize that people might have fallen down and that it would be reasonable to expect to find an innocent human being there. Risk sport or not, you are potentially a deadly weapon on skis, and reckless use of a deadly weapon is a serious crime, as it ought to be.

If you hit someone who was ahead of you, you are at fault. Period. Hitting someone alone is sufficient evidence that you were OUT OF CONTROL. Either that, or you hit the person intentionally, which is an even more serious matter.

Show me someone who uses the excuse "you turned in front of me," and I'll show you an utter moron. I WAS in front of you, you idiot! Where the hell ELSE could I have turned?!?!

It is your responsibility, ethically, and fortunately in Colorado, legally, to behave in such a way that you do not pose a risk to those ahead of you on the slopes. It is as asininely irresponsible and negligent as anything I can think of to believe otherwise. Acceptable risks of the sport include the consequences of your OWN behavior, the natural hazards of the mountain environment, and so on. Being run down by an out-of- control (by definition) idiot is NOT an acceptable risk! That the sport entails inherent risk does not justify negligent behavior by your fellow human beings!

The law requires you to ski in control when other people are around. Nathan Hall was NOT in control--he ran into a beginning skier doing what beginning skiers do, in a place where you would expect to find a beginning skier. There was evidence that he'd been drinking and smoking pot as well. It seems that many people believe that, since he was still standing, he must have been "in control." Thinking like that just doesn't make sense--hardly even qualifies as "thinking." Houseplants are brighter than that! What does "control" mean, if not that you are able to do what you want, go where you choose to go, and avoid injuring yourself or others, unless you choose to? Either he was out of control and killed recklessly and negligently, or he CHOSE to kill. It was not justified. It should not be repeated. And anyone who didn't get it prior to that "accident" should get it now! His sentence, which as I recall was NOT for a "misdemeanor," but for a felony, was justified, and soft, in my opinion.

There were many heated discussions of the Nathan Hall case, and the related issues, here at EpicSki. Search for "Nathan Hall" and you'll find numerous threads. Among them:

Unjustifiable risk, Nathan Hall on trial


Nathan Hall Sentence

but there were many more.

A final note: many have brought up the question "whatever happened to 'on your right'"? While I recognize that this warning is often used with the right intentions, as a courtesy and as an attempt at "etiquette," I'd like to remind everyone that it is does not give you any rights! Experienced, expert skiers rarely say it, or need to. Personally, I hate it! Usually, when someone shouts "on your right," they are really saying "look out, get out of my way." The person they're shouting at has NO obligation to "get out of the way," whatsoever, and the person shouting still has the obligation to avoid a collision, NO MATTER WHAT the skier ahead does! What if the person receiving the "warning" is deaf? Dyslexic? Doesn't understand English? Needs or wants to make a turn?

"On your right!" should be reserved for those times when you are really, truly, "out of control." And those times should be damned rare! It's a fair warning, in that case, but it still does not excuse your negligence if you hit someone! I urge everyone to ski in such a way that you cannot possibly hit someone else, no matter how unexpectedly, erratically, or even stupidly they may behave. If you ski that way, there is no need to warn "on your right"--you aren't a hazard!

I'm as anti-frivolous-lawsuit as anyone on this board, probably moreso. But negligent behavior is NOT an "acceptable risk" of the sport of skiing. I accept all kinds of risks, and take many of them knowingly in my chosen sports. But I will accept responsibility if I injure someone else. And I will demand that responsibility if someone else injures me.

Best regards,
Bob Barnes

[ December 17, 2002, 12:28 PM: Message edited by: Bob Barnes/Colorado ]
post #24 of 50
Originally posted by Bob Barnes/Colorado:

"On your right!" should be reserved for those times when you are really, truly, "out of control." And those times should be damned rare! It's a fair warning, in that case, but it still does not excuse your negligence if you hit someone! I urge everyone to ski in such a way that you cannot possibly hit someone else, no matter how unexpectedly, erratically, or even stupidly they may behave. If you ski that way, there is no need to warn "on your right"--you aren't a hazard!
Good post Bob. I’d offer that long cat tracks are also an acceptable place for calling out when you are passing. Doesn’t mean get out of the way, but gives ‘em warning that a hockey stop shouldn’t be in their plans…
post #25 of 50
I usually bang my poles on those long runouts. I think it gives the skiers ahead of me some idea of where I am so they're not surprised by my silent approach, not a 'get out of my way' thing.
post #26 of 50
Hear, hear Bob!!! 'nuff said.
post #27 of 50
Thread Starter 
Bob Barnes:

Your reply is a perfect example of why these issues are decided by summary judgement motions before judge panels...not juries of people like you or me (err..well. . .unless one of us is a judge, I suppose). I'm also not expressing an opinion, but a matter of common law (CO excluded). My opinion is that I agree with this law. Actually, you are right ....for your state...not for anywhere else, however.

I think you're confusing some terms here. Negligence is not intentional nor reckless. Negligence is a mistake, a deviation from "reasonableness". Like, if you could have seen someone coming from the right (slightly downhill and parallel to you), but were distracted by a hot babe on the left, or slightly crossed your uphill ski on a patch of ice on the lower side of a mogul. Yes that is accidental - - - but it is negligent - - - moguls do have ice on their backsides and hot babes are on mountains and damn, they are distracting, aren't they? Maybe we should sue them. (by the way, this is hypothetical now).

Negligence could also be doing stuff like "going too fast". Recklessness and intention are entirely different standards, far beyond negligence, with much larger probability of doing harm and obviously outside the nature of the activity(e.g., going the wrong way at high speed down a one-way street; purposefully ramming a pedestrian with your car). "going to fast" is not that. There is no legal distinction between "making a mistake" or "making a big mistake" and "negligence". . .whether you consider the mistake stupid is irrelevant. This is why primary assumption of risk acts as a complete bar to recovery in most states.

Similarly - let us say you were golfing....and instead of hitting it straight - you shanked it. As a result, you clocked an 80-year-old woman in the eye, blinding her - and resulting in a brain injury, blood clot, and stroke. You were negligent...and...by the reasonable person standard might be held liable (criminally and civilly).

This is not the way it works....however. These are sports. They involve imperfection in human skill and reason, as well as challenge and risk. These factors result in the apparent behavior for which you might claim fault.

However, courts (except in CO) recognize these factors as inherent to the sport and expect that imposition of civil (or criminal) liability would not only chill athletic competition, but fundamentally alter the nature of the sport (e.g., by limiting one person on a hill, separated by distances of 1/4 mile). Clearly, such alteration would chill skiing and make ski resorts uneconomical. But courts also consider social factors (called Rowland factors, after Rowland v. Christian, by the way) like the cost of insurance, prevention of future harm, the nature of the activity and relationship of the parties, etc. etc.

Fine....you want to allow lawsuits for a sports in CO....then require everybody who goes on the ski slope to have a million dollars in personal liability insurance. let me close with one fact and one opinion: CO has 40,000 injuries per year, skiing, of which 40% are collisions with an object (about half with other people). If it is ever enforced significantly (which it isn't at all) expect business to go elsewhere or the law to change. :
post #28 of 50

I got three lines into your retort and I don't even have to go any further. You simply refuse to get it. You can lead a horse to water but you can't make him drink.

It is a law of common courtesy and common sense AND it's the skiers responsibility code. If one needs uncle sam, a judge or a jury to regulate and dictate common sense then America is in sad, sad shape. Like I said, I for one am GLAD Colorado has the laws it has. I'm certainly glad that I get to live in a place where we have people like Bob. I learned the skiers responsibility from an old Austrian who's been skiing for damn near 75 years. The same rules apply today.

By the way, if you don't play football by the rules, they won't let you play. Maybe we need to do more of that in our sport.
post #29 of 50
Hi Steve--

It isn't my place or my desire to argue the legal definitions of terms like "negligence." I will, however, quote the dictionary, which gives the following definition as it applies to the law:

NEGLIGENCE: "Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party." (--American Heritage Dictionary)

The expectation that others will exercise "reasonable care" is something that is not, and should not be, waived simply because there are OTHER "inherent risks" involved in an activity!

Colorado has passed its laws in order to PROTECT the ski industry from frivolous lawsuits, not to encourage them! While a few people may well be turned off from the sport, as you suggest, when they realize that they must take responsibility for their actions, and that they are not given carte blanche to act recklessly, there are far more who would stay away if that were NOT the case! If the law keeps those looking for a license to kill off the slopes, I don't see that hurting the industry!

Your golfing analogy is an interesting question. I know virtually nothing of golf, but it would seem that, given the potential for causing serious injury as you describe, there should indeed be an expectation of "reasonable care" from others. That might include some degree of training in handling the potentially lethal weapon, and some degree of care and judgement in its use as well. Accidents do happen. But if the accident is a result of negligence ("failure to exercise reasonable care"), it is really NOT an accident. It should NOT have happened, and it would not have happened if "reasonable care" had been exercised!

"Reasonable" care is self-explanatory. It's reasonable! No one expects "unreasonable" care. Some things do, indeed, happen, despite reasonable care. As your title suggests, sometimes "nobody's uphill" and the accident is indeed an accident, an inherent risk of the sport, and one that we should accept. But that does not excuse true negligence. That there was no "intent" to harm, does not justify an "accident" that a reasonable person would have avoided.

Anyone who hates frivolous lawsuits, who believes that we should be responsible for our actions and our decisions, must realize that this belief entails the conclusions I've drawn. It is irrational and contradictory to say "we should be responsible for ourselves," and "the person who hit you should not be held responsible...." One way or the other--not both!

Best regards,
Bob Barnes
post #30 of 50
Thread Starter 
Ski2xs and BobBarnes:

I actually agree with alot of what you guys say....I'm all for courtesy and complete application of skiing etiquette like yielding to the skier below, ski within your ability, not suddenly stopping in the middle of a run (going to the side) and so forth. I do all that, I agree with it and its great. I also agree that you should stop and assist anyone you accidentally get mixed up with...and, as required by some State's laws, provide identification information when there's an injury. That's all great...but its another step to transform it into a legal duty...that's what CO did.

Where I part company, however, is in concocting a state law that defines negligence by mere relative position on a mountain, defines skier-skier collisions as not being inherent risks (even though they are), setting anyone up for lawsuits ranging from small claims to death. Because it is defined by law, it becomes negligence per se.....doesn't matter what the circumstances were that caused you to be in an accident.....if you were uphill......you pay.

One of these days, you or someone you know will either make a mistake or simply be in the wrong place at the wrong time....you'll know them, their skiing ability, and their courtesy. And none of that will matter because they were uphill. Might change your opinion.
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