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nobody's "uphill" in many accidents - Page 2

post #31 of 50
I'm not sure what state law defines negligence by relative position on the mountain. The colorado statute merely creates a rebuttable presumption that the uphill skier has the primary duty to avoid collisions. The downhill skier also has the duty to ski in control under the statute. So, if the uphill skier can show that the downhill skier breached his/her duty, the uphill skier is not automatically liable.

With respect to your objection that skier-skier collisions are not an inherent risk of the sport, I think your misunderstanding the purpose of the language. All this language does is allow an injured party to sue another skier in the event of a collision. The doctrine of assumption of the risk still applies. So, in many cases, the facts of any particular collision could still be an inherent risk of skiing. The language just allows the case to go to court to determine whether the defendent's actions were outside of the risks inherent in the sport.

If the statute provided that skier-skier collisions were inherent risks, and assuming the statute was upheld by the courts, that would send a message that skiers didn't have to obey any duties or standards of care because any collisions were inherent risks. I'm against frivolous suits as much as the next person, but I would rather have the uphill skier worrying about being in control and avoiding collisons, rather than having him or her barrel down a slope knowing that he/she gets off scott-free no matter what the circumstances of the collision.

Finally, summary judgments are the exception rather than the rule in negligence cases. In order to grant a summary judgment motion, there must be no dispute as to any material fact. Judges are quite wary of granting summary judgment motions on highly factual cases.

[ December 17, 2002, 08:46 PM: Message edited by: Skidmo ]
post #32 of 50
Good discussion! One point, perhaps minor, perhaps not: it has actually been quite a while since the Skier Responsibility Code (now called "Your Responsibility Code") said anything about the uphill or downhill skier. The current wording specifies that "people ahead of you" have the right of way, and that it is your responsibility to avoid them.

This rewording clarifies some issues, while creating others. With today's carving skis, it is quite possible to ski UPHILL at a pretty good clip. Several years ago, I posited the question of who is at fault when a skier rips down the hill, then does a 180 degree carved turn up the hill and collides FROM BELOW with a skier wedging slowly down the slope. The carving skier is the "downhill skier," but clearly he/she is the person who caused the collision and who was skiing recklessly.

The new wording is essential for cases like this, but, since the collision was head-on, BOTH skiers collided with someone ahead! So "Your Responsibility Code" remains problematic, and open to interpretation. It seems to me that the responsibility still lies on the skier who WAS the uphill skier at one point, and who overtook the other skier and caused a collision, whether it happened on the way down or on the way back up the hill.

So it is not quite as simple, cut, or dried as "downhill skier always has the right of way."

Best regards,
Bob Barnes

[ December 17, 2002, 10:04 PM: Message edited by: Bob Barnes/Colorado ]
post #33 of 50
Very good points lathogether, everyone.
Look at this one too:
Toward the end, a more specific case was brought up.
To me, that one was clear cut.
(Unless I don't understand what "cat tracks means", in that case, please explain the term to me, tks).
post #34 of 50
Thread Starter 

a cat track is like a narrow road that skiers can take between different parts of a mountain; usually not steep. If memory serves, "cat" may refer to some kind of motorized machinery that also use these roads (grooming devices; "caterpillar" tracks perhaps?).

Skidmo - dunno about DC; but I wouldn't even classify a lawsuit involving skiing as a "negligence" case - since by definition there is no negligence in assumed risks. And yeah, I know about what you're getting at with the rebuttable presumption...that only emphasizes my point. You shouldn't have to offset one risk (like losing control uphill), with another by the downhill skier. The downhill skier could have been doing nothing wrong, and still contribute to a collision. It isn't an issue of fact - its an issue of whether or not a collision is an inherent risk of the activity, just like getting bit by a shark is an inherent risk of cleaning a shark tank. Most people don't realize that skiing injuries can result from moderate impacts (kick a wall with a ski-boot, if you want a demonstration).

Rarely - if ever - would a case be brought to trial; CA and many other states are firm on this. They don't want people to take part in skiing, a sport with 10,000 people on a mountain going all different directions and speeds, all different abilities - get hurt - and clog up the courts and insurance companies with finger-pointing. Even with the laws in CA...all sorts of pissed off people sue for what are obviously accidents...As you know, subjecting defendents to discovery costs before the motions. It doesn't even matter if the defendant has any money! they do it because their kid is dead or whatever....just wanna blame somebuddy. They see the legal process as some form of punishment - - which it is. I'm not making light of injuries; but these risks are inherent and must be assumed in sport.

Contrary to skidmo, summary judgement is rather common in sport claims, and lawyers are plenty skilled on how to conduct discovery to avoid factual disputes. Collisions are an inherent risk, so is losing control, or falling down. Some people fall down more than they stand up.

You don't necessarily get off scott-free...however. You can lose a lift pass and, in some jurisdictions, be fined a couple hundred bucks or termed several days.

Incidentally - if anybody is so unfortunate to get involved in a case - you can't ignore the summons...regardless of what the state law is.
post #35 of 50
Originally posted by ski2xs:

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.
interesting debate tactic...refuse to listen to (or read) the other side's position and maybe it will go away. do you vote?

with all due respect to bob barnes and the "uphill skiers suck" bandwagon, steve's arguments make a lot of sense and i agree 100%. i play, and have been injured in, many many sports. when i broke my foot taking a charge in a basketball game, i didn't rush out to find the nearest ambulance chaser or put my opponent "on notice."

collisions between two skiers can happen even if both are excercising appropriate care. maybe the uphill skier caught an edge and went sliding "out of control" into his buddy downslope. will you fault him for not being able to make a bode miller-like recovery in time to avoid the collision?

i mean, come'on people...sports are dangerous!!!
post #36 of 50
First, let's address the issue of summary judgment in a negligence case. From a recent 10th Circuit Court of Appeals case (the court of appeals for Colorado), in a case in which the 10th Circuit overturned a summary judgment verdict of the lower court:

"Indeed, the substantive slope of negligence is a treacherous trail upon which to avoid a trial. Its moguls of credibility determinations and subjective reaction provide the perfect course for a jury. Yet, summary judgment is not always unattainable in negligence actions, especially when it is based on the resolution of legal rather than factual issues or when there is insufficient evidence to create a genuine factual issue. These examples remain the rare case. It is otherwise sparingly granted in a negligence cause of action." Ulissey v. Svartsman .

From Wright, Miller, & Kane, Federal Practice and Procedure (1983).

"Although a motion for summary judgment under Rule 56 may be made in any civil action, it is not commonly interposed , and even less frequently granted, in negligence actions."

From Moore Federal Practice

"Issues of negligence, including such related issues as wanton or contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner ."

With respect to assumption of the risk, in every sport, you assume the risks that are inherent in the sport. You do not assume the risks that are not inherent. Let me give you an extreme example. If a skier comes down the hill, eyes closed, with his ski poles pointed straight ahead and stabs the person in front of him, I would hope that you would think the downhill skier did not assume the risk that this would happen.

Where there is disagreement among the posters here (and courts in general) is in the middle ground where an accident happens and the behavoir of the person who caused the accident was more than a simple accident, but short of particularly eggregious behavoir. In your opinion, most collisions are inherent risks even if the uphill skier is going too fast. But, what if the uphill skier was also out of control? What if the uphill skier was talking on a cell phone? What if the uphill skier was drunk? What if the uphill skier intentionally ran into you because you cut him off earlier in the day? At some point, I think we could get to a point where everyone agrees that the injured person didn't assume the risks of the particular accident.

In criminal cases, where the prosecutor must show that certain specific elements of a crime were present, summary judgment may be more appropriate.

Ironically, I think we're actually in substantial agreement on the issue of whether the "uphill skier" should be held civilly liable for the run of the mill accident. I agree that most collisions are inherent risks and should not win in court.

Until I'm in the ski boots of someone who received permanent damage from a reckless skier, however, I'll reserve judgment on what I would do in that sitiuation.
post #37 of 50

Nothing personal, since I certainly don't KNOW you BUT:

Your statements are some of the most assinine drivel I've seen on ANY skiing board. It's very simple: If you don't want to or CARE to follow the skiers code, don't ski.

You obviously don't do any BC skiing. You're entirely too much of a danger. Not only to yourself, but those around you - which is even worse.

Good luck and for cryin' out loud - be careful. You never know when you might meet the Steves of the skiing community. Face to face at about 60mph.

post #38 of 50
EPSkis - Not sure what you’re reading into Steve’s posts. I saw nothing in there that he ignores the code or promotes recklessness. He raises some good points, I may not agree with his interpretation on liability, but that is a hell of a stretch from considering him a danger on the mountain. :

[ December 18, 2002, 04:15 PM: Message edited by: Tanglefoot ]
post #39 of 50
Yes, Adema--if you catch an edge and run into me, it is your fault. Expert skiers don't catch edges often, but they ALWAYS realize that such things happen, and they make good and sure that their failure or error does not in any way endanger other skiers. Period. If you can avoid hitting other skiers only when everything goes perfectly, you are OUT OF CONTROL, negligent, and reckless. If catching an edge is a reasonable likelihood for you, you must keep far enough away from other people so that, when it happens, you do not hit them! It is just plain common sense.

But if everyone had common sense, we would not need laws like the Skier Safety Act. Such laws exist to protect people from those who LACK common sense. If you can't figure it out on your own, the ski patrol, sheriff, and judge will be more than happy to show you the way--and keep you off the slopes. It's not ONLY common sense--it's the law. And there is little point in debating it--the sheriff won't argue with you, and you have the right to remain silent!

Here are some interesting sites:

Warning from Colorado's Attorney General and the Summit County Sheriff

Colorado Ski Safety Act of 1979

As this document shows, the Ski Safety Act is NOT designed to promote frivolous law suits. Quite the opposite! Its purpose is to PREVENT people from suing RESORTS for the "inherent dangers" of skiing. By virtue of this law, you cannot sue THE RESORT if another skier injures you through negligence. In this respect, collisions ARE among the inherent risks of the sport, and the resort cannot be held responsible for them, in general. But the Skier Safety Act quite clearly does NOT absolve individual skiers of responsibility. Read the following passage, which states the case clearly and unambiguously:

"(1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability. Each skier expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier's acts or omissions. Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another."

YOU are responsible for YOUR actions. If you injure someone else through your actions, inactions, failures, mistakes, or misjudgements, whether intentionally or accidentally, YOU ARE RESPONSIBLE. Not the resort. YOU.

Sorry guys. Your lift ticket is NOT a license to kill! That there are inherent risks of skiing does not give YOU the right to put others at risk! Unlike rocks, trees, icy patches, and inconsistent snow, you can easily be removed from the mountain. Your recklessness, lack of skill, bad judgement, and negligence may put YOU at risk, and may not be the responsibility of the resort, but it is hardly an inherent risk of skiing that others need to accept! Understand this. Act accordingly, or the ski patrol and the sheriff will make it crystal clear for you! And don't say I didn't warn you.

Best regards,
Bob Barnes
post #40 of 50
Very well said, Bob.

I particularly liked this bit...
Originally posted by Bob Barnes/Colorado:
YOU are responsible for YOUR actions. If you injure someone else through your actions, inactions, failures, mistakes, or misjudgements, whether intentionally or accidentally, YOU ARE RESPONSIBLE. Not the resort. YOU.
It kinda sums up the skiers code.

If someone cannot accept responsibility for themselves, they shouldn't be on the slopes. In fact, they should be back in kindergarten - learning how to be a human being!

post #41 of 50
Excellent, Bob! Thanks for cutting through the legal mumbo-jumbo and returning to common sense, courtesy, and concern about fellow human beings. It would be a better world if everyone understood this.

Tom / PM
post #42 of 50
I'm just curious, but what normally happens in those "he said, she said" type of collisions where both parties blame each other? I wonder because last year I was skiing my small S turns down in a flat area 50 yd from a lift when a obviously skilled woman zipped right across me from my back left. She must have misjudged my speed or hers and we missed by INCHES. While I was uphill at the moment of truth I can't believe I'd be at fault however I'm sure anyone inconsiderate enough to ski like that would surely have blamed me. If you catch my drift it's like me skiing up from behind a wedger and cutting right in front of their tips. Just wondering how these things get dealt with on the mountain? skidoc
post #43 of 50
I have not wanted to re-enter this fray, but I guess I must. There are a few correct statements in here but many more misleading. Steve_s is correct that in California, the law is different than in most other places and is very restrictive. It is misleading to believe that the California law is written in stone or that it will protect you as long as you don’t intentionally injure someone. It won’t. If you drink and ski or talk on your cell or you radio, are you still acting in a way that is protected? Probably not, since it is doubtful that the other skier assumed these specific risks. Laws change every day and this law is ripe for a change since it is out of step with most other jurisdictions.

Worse yet is the fact that the discussion focuses only on civil liability, or the liability an individual has for his actions, which injure another. There is no discussion of the other “kinds” of law, which will rear their ugly heads in on mountain injury situations. These include: 1. The law of the resort, 2. The Criminal law, and 3. Other civil laws.

Use the following as an example:

John and friends (all about 22 years old) decide to race down a black diamond run, onto a blue and finally across a green run, first skier to the lodge wins. The rules are you cannot hit anyone (thus there is no question about intentional injury). California liability law applies (but this is not intended to be a discussion of California law). The group skis at around 40 to 50 mph on the entire course and John hits and kills a 5-year-old boy (Greg) near the bottom of the green trail. John is seriously injured but recovers. Police and investigators are called and do a through investigation. The event receives press coverage and investigative reporters uncover a large undercurrent of skier resentment for the resorts unwillingness to control fast aggressive skiing in slow and family skiing areas. The resort notices a 10% drop in skier numbers during the weeks following the accident, and fears this will continue or increase.

The law of the resort is really simple; if you ski in a manner the resort doesn’t like and create a situation where an injury occurs, they may take you lift ticket, season pass or other, and they may ban you from riding the lifts, for a period of time or for life. Cry and argue as much as you like, but you will have to go to court and spend substantial cash to regain the right to ski at the resort. My take is that because of publicity and resort liability, John would likely lose his season pass and his right to ski the resort in the future. John does not have the funds to fight the resorts actions in court.

I remember a few years ago, a young boy having his season pass pulled for performing blind inverted aerials, and skiing dangerously.

The Criminal law is the most important here. The investigators find that under the criminal law John was acting in either a criminally negligent and/or reckless manner and change him with Manslaughter. Because John has two other minor felonies on his record he is looking at life in prison if convicted (three strikes law). Even if John had no prior felonies, he is looking at a record for the felony homicide with the probability of prison time. John will likely be convicted of a mid to lower level of manslaughter involving gross negligence.

Other civil laws may help correct the situation. Oddly, Greg’s father cannot sue John directly in civil law negligence because the California civil law assumption of risk doctrine does not permit that. But Greg’s father is lucky because the State Legislature enacted a statute that permits wrongful death suits to be brought regardless of the status of the civil negligence law, in cases where at least gross negligence caused a death and the criminal defendant was convicted of at least manslaughter. So, while John should have been protected by the assumption of the risk theory, he was not. The case went forward and Greg’s father was awarded money damages, which John’s renters/homeowners policy covered. Again, California law may or may not permit the above, it is intended only to show how the law can be more complicated than many assume.

John ends up in prison and bankrupt. Greg is dead and his parents are bereaved.

The law is a strange and complicated thing. It pays not to simplify it unless you can pay the ultimate consequence it will mete out. Steve_s may be right within the limited parameters of his discussion and within the limited parameters of a single legal jurisdiction (and it is a minority rule), but that does not mean he is correct as to the law in any other States or that his limited discussion is some sort of scripture on how you too can avoid liability for foolish or unreasonable actions.

If you really want to know your legal rights, read the law of the state where you ski and don’t just read the skier liability law or the responsibility code, read the law.

Courtesy. Follow the skier responsibility code because you are a good, courteous skier. With few exceptions, if you hit someone downhill from you, it is your fault and an indication that you were not skiing in control and/or you think you are a better skier than you are.

Finally, some personal thoughts: I suspect that California’s law has a fair chance to holding up primarily because there are few skier collisions, which result in serious injury. However, it is a law that goes too far the assumption of the risk theory should be limited to negligent actions not expanded to gross negligence, reckless or intentional acts. A negligent slip and fall resulting in a collision is one thing, but the idea that it is OK to tuck and ski a beginner run at 40+ mph should not be covered, as California seems to do at present. Anyone taking such actions and causing injury should be criminally and financially responsible for any damage/injury caused.

post #44 of 50
Tanglefoot (great handle by the way!) You're spot on regarding the who in 'someone is going to be found at fault' all too oftn it is the hill. On those unhappy occaisions where we worked a collision (I'm a former patroller after all ...) occaisionally we had both parties and still had a witness or two. At that point all the names are onthe accident report and the law takes care of itself. If not, it's the lilability carrier and ticket prices go up ...

Personally 'on your right' or also banging your poles (clicking your carbon's isn't nearly as good ...) is still common courtesy in my book. There are times, the cat walk and merging trails when it is still appropriate. This is of course combined with the fact that I'm in control and giving the skier / boarder ahead plenty of room. Judgement call ... you have to know the upcoming terrain, you have to make a judgement about the rider ahead and their abilities ... if any of the indicators are not in favor, there is always a speed check until you can make a clear pass ...

As someone who stays in the trees as much as possible, re-entering a trail requires 1 a spotter a jump and a line or a thoughtful approach. Taking someone else out is just not acceptable in my book anywhere anytime.

Fact is a lot of this boils down to mountain ettiquette. Sadly lacking in many cases.

OK - there's my .02! The hill opened this week while I'm working in Amsterdam and I'm there as soon as I'm home & awake! Enough typing its time to ski!
post #45 of 50
Working in Amsterdam? : [img]graemlins/thumbsup.gif[/img]

post #46 of 50
The answer to all these insanely long-winded debates is of course to ensure that if you go skiing in the US, make sure you have very good personal liability allowance in your travel insurance.

[ December 20, 2002, 12:38 AM: Message edited by: TheRockSkier ]
post #47 of 50
Thread Starter 
Sorry its been so long, maddog:

I've been out skiing.....tons of fresh powder and hey,

its the middle of the week....did you think I was at work???

Oh nonononononononono. Well, I'm back...

Now, just a brief rejoinder.

1) ski codes are great. I'm all for responsibility codes and for confiscating passes and patrollers kicking out whomever they want to. I think everybody should abide by the codes.

They just do not form the basis for a civil complaint. People don't carry around insurance for this; lawyers don't take these cases because the law doesn't allow it.

2) I'm not talking california law....or even ski law....its common law related to any sport to which there are inherent risks. California isn't restrictive...every state (including colorado) has upheld assumption of risk in everything from sport to vets (who assume the risk of dogbites). Its just that colorado has decided that skiing is something special and has legislated inherency out of one particular sport in that particular place.

Its nuts. Why not allow people to sue for clipping in pro football? Or for errant golf balls in arizona?

As for alternative causes of action...like wrongful death....doesn't matter; assumption of risk is a bar to recovery (covers any cause of action).

3)Skidmo raises an important question in deciding at what point does an aberrant activity transcends negligence - the test is whether or not prohibition of such activity would fundamentally alter the nature of or chill participation in the sport.

The exceptions he raises are instructive, but really negligent actions: substance influence (alcohol or drugs); and skiing blind. In each case, prohibition of such factors would not alter the sporting activity and are thus not inherent.

4) As far as the citations on the rarity of summary judgement in negligence cases as a whole .... yeah....I'm familiar with that language - - - something like it appears in virtually every published decision too. But sports cases aren't negligence cases...because the standard of care is not negligence in the first place (its intentional or reckless conduct - - - wherein the "recklessness" exceeds the bounds of the sport and prohibition of such would not alter the sport). The most common result is actually not dismissal on motion; it is that you'd never find a lawyer who would take the case (except by hourly charge).

My last post on this subject....I swear......Man its nice outside......I'm there......out.
post #48 of 50

and thats what I teach all my ski classes.

Oz [img]graemlins/thumbsup.gif[/img]
post #49 of 50
Remember that when you're going thru an intersection on a green light and a drunk driver runs a red light, plows the side of your car and leaves you paralyzed. I bet you won't think you're responsible at that point. Whether the law Down Under allows it or not, I bet you'll want some cashola for your new fate.

I'm no fan of lawyers and frivolous lawsuits, far from it. I've been sued 6 times in 17 years on my job...(the "other" side of defense attorneys".

Bob Barnes is one of the few speaking COMMON SENSE on this issue...most other stuff is irrelavant. Steve may very well be a caring responsible guy but he is genearlly saying that my 10 year old daughter getting plowed by somebody like Nathan Hall is an inherent risk of the sport and IT IS NOT. An inherent risk is hitting a snow covered log or rock, causing you to fall and break your leg.
post #50 of 50
with all due respect to bob barnes and the "uphill skiers suck" bandwagon, steve's arguments make a lot of sense and i agree 100%. i play, and have been injured in, many many sports. when i broke my foot taking a charge in a basketball game, i didn't rush out to find the nearest ambulance chaser or put my opponent "on notice."
That's not so much of the point. The point is the rules. i.e. there are rules in basketball. Now, let's say he broke your foot, it eventually heals and your able to get back in the game. BUT before your back in the same guy has done the same thing to several other players, maybe even some more on your team. Do you think you, or the NBA, or the block manager should take notice of this individual then?? By the way, I read it.

Steve said something earlier,

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.
No, I really don't believe so. Again the bad thing is that when an accident happens, no one who actually sees it (if any) seems to hang around long. Maybe that should be added to code, eh? However if you can be shown to be an uphill skier, who was in control and not reckless, skiing responsibly with due diligence who slammed into some nut who hockey stopped dead in front of you, then I'd give you the benifit. But then that's double-edged. I like Bob's description with the downhill skier shooting back up the hill and plowing into the uphill skier! Fortunately most laws still allow some descretion.

Oh, and the sueing for clipping in pro football is probably because there's a difference when you get paid and sign contracts. Besides, the guys in the pros who continually ignoring the rules do face severe penalities. Sometimes to the point of being banned from the game.

Man from Oz has a great point. Simply be aware of what's going on around you. Being responsible for yourself assumes that you have enough sense to be aware of the wealth of dangers that can befall you from others actions as well as the few you face from your own stupidity. I may be considered a nut but I guess I've watched too many "greatest cop chases". I tend to watch interesections better now even with right of way. . . . I still blow red lights though so, heads up everyone!

[ December 23, 2002, 10:22 PM: Message edited by: ski2xs ]
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