THE BUZZ 2: Risky Turns

By on February 7, 2017

House Bill launches debate about skier safety and resort liability in Wyoming.

JACKSON HOLE, WY – A bill in front of the Wyoming Legislature aims to clarify the definition of “inherent risk” in skiing and snowboarding at ski resorts, and consequently establish what accidents are worthy of a lawsuit. Opinions on either side of the argument suggest that semantics carry a lot of weight where liability is concerned.

House Bill 32, The “Ski Safety Act,” advanced out of the House and into the Senate committee last week. Its goal, said proponent Rep. Mike Gierau, D-Jackson, is to “carefully delineate and define inherent risks involved in snow skiing and set out a framework for all ski resorts to be defined in the same way.” Local Reps. Andy Schwartz, D-Jackson, and Marti Halverson, R-Etna, are also in favor of the bill.

Inherent risks, according to the Wyoming Recreational Safety Act, are “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Under the Wyoming Recreational Safety Act, ski resorts and other providers of certain sporting activities are already protected from liability for accidents that are a result of an inherent risk of the sport.

Blanket immunity?

Attorney Jerry Bosch worries that the bill essentially eliminates the word “inherent” from those protections. Ski resorts, he says, would be protected from any risk involved in skiing. “That could be anything.”

Ski Safety Act’s new definition of inherent risk is “dangers and conditions which are part of the sport of skiing,” including “changing weather conditions; collisions or impacts with natural objects including encounters with wildlife; impact with ski lift towers, signs, posts, fences or enclosures, hydrants, water pipes or other man-made structures and their components; and variations in steepness or terrain, whether natural or as a result of ski trail or feature design, or snowmaking or grooming operations such as roads, freestyle terrain, jumps and catwalks or other terrain modifications.”

Bosch’s concern is that under the Ski Safety Act, ski resorts and judges would dismiss accidents as inherent without considering the context in which they happened. He tells the story of his client Lindy Cunningham. Two years ago, she was skiing at Jackson Hole Mountain Resort when she slid from the groomed Gros Ventre trail into a trail sign. The sign, Bosch said, was poorly placed downhill of the run, and at the intersection of two groomed trails. Bosch alleges it also lacked proper padding.

“If the sign moved back 20 feet, her injuries don’t happen,” Bosch said. “If it’s padded correctly, her injuries don’t happen.”

Cunningham suffered a spinal injury and is now an incomplete quadriplegic, meaning she has partial use of her arms but no use of her legs. She sued JHMR, but her case was dismissed because she signed a waiver when she rented her skis and hence, assumed the risk when she bought her lift ticket. The sign has not moved, nor has the padding changed. Bosch argued in court that the context of her accident was important, and that her injuries were not the result of an inherent risk but instead of negligent sign placement and maintenance. The new law, however, would clearly label her collision as an inherent risk.

Mark Aronowitz, director of Lawyers and Advocates for Wyoming, offers a more hypothetical example to illuminate why context is important. Included in the bill’s definition of inherent risks is a collision with another skier. In most instances, Aronowitz admits, that is indeed an inherent risk of skiing.

“But,” he questioned, “what if you have a ski resort that can safely hold 500 people, and they sell 5,000 lift tickets?” Or what if a mountain employee, he continued, serves someone five martinis at lunch, and that person later gets into a collision?

“Both are collisions, but not inherent. That’s why the facts matter.”

Opponents fear that under the Ski Safety Act, cases like Cunningham’s would never even make it to a courtroom. They also worry that in the absence of accountability, the ski resorts would neglect to take appropriate safety measures to prevent further incidents. The threat of a lawsuit, Aronowitz noted, is often at least as strong as a lawsuit itself.

“People engage in skiing and other recreational activities because they are enjoyable, and in attending a resort, [people] are extending trust that [the resort has] taken precautions to ensure safety,” Cunningham wrote in an email to the Joint Travel, Recreation, Wildlife and Cultural Resources Interim Committee. “But … that isn’t always true and if people aren’t given the opportunity for legal inquiry and action, it will become all the more untrue.”

Unfounded fears?

Gierau presented the bill on behalf of the Joint Travel, Recreation, Wildlife and Cultural Resources Interim Committee, where it passed by one vote. He says that the Ski Safety Act is “absolutely not” immunity for ski resorts, and that fears of negligence are unfounded.

First of all, he noted, the American National Standards Institute (ANSI) B77 establishes standards for lift construction, maintenance, and sign inspection. Ski resorts are legally obligated to meet those standards.

Further, Jackson Hole Mountain Resort president and CEO Jerry Blann said the bill includes regulations for ski resorts to ensure the safety of their patrons, including placing clear warning and trail signs in appropriate places and instructions for responsible vehicle parking (in other words, not parking a snow cat in the middle of a high-traffic run).   

The bill also has a negligence clause that would penalize ski area operators for violating “any provision of this act” that “causes damage, injury or death to person or property, constitute evidence of negligence on the part of the person or ski area operator violating this act.”

The purpose of the bill, Gierau said, is to “really help those smaller ski resorts in managing their risk overall.”

Gierau noted that eight of Wyoming’s 10 ski resorts are small “mom and pop” operations with few employees. While there’s no concrete evidence to suggest that insurance premiums would lower, but a “frivolous” lawsuit against a small resort could cripple them.

“It’s not just for the Mountain Resort at all,” Blann echoed. “It’s actually a bigger deal for the smaller resorts than it is for us.”

Blann said he couldn’t readily quantify how many lawsuits resorts across the state face, but for “places like Antelope Butte and Sleeping Giant, one case would put these guys out of business. One is enough.”

However, Aronowitz thinks that notion is disingenuous. “Any ski mountain is a pretty large endeavor,” he said. While there are 10 ski resorts in the state, there are “tens of thousands of skiers. I hope that instead of protecting the 10 people who own [resorts], they’d be more interested in protecting the thousands of Wyoming skiers and tourists who are kind enough to visit.”

Blann, meanwhile, hopes that in a state whose number one industry (energy) is in a “difficult spot,” the Ski Safety Act could give the tourism industry and the resorts that contribute to it a competitive edge. He observed there are 28 similar bills around the country, in essentially every state with a ski resort except South Dakota. Wyoming’s bill, he said, is primarily modeled off of Colorado’s Ski Safety Act, but is “watered down” after a summer’s worth of creation and revision.

Wyoming’s iteration, he said, “just spells out responsibilities of skiers and snowboarders, and of ski resorts.”

What’s next

The bill has made it to the Senate committee, and if it overcomes this next hurtle, Bosch says expects it to pass. It would, however, still have to go through three full readings in the Senate, and much of the language could be amended to reflect the concerns of opponents like Bosch and Aronowitz.   

Aronowitz said his feelings about the bill would completely change if it mirrored some of the skier protections that the Colorado Ski Safety Act, which this bill is loosely based on, and removed some of the categories of inherent risk that he feels are too subjective, like collisions with skiers.

However, Blann argues the amendments made in house, which added a number of skier protections and regulations for ski resorts, “on top of all the work that went on all summer long,” is sufficient. He does not want to see the bill “amended to death to the point that it’s useless.”

“You’re not in a padded room,” he said. “There are risks to being outside.”

Cunningham, meanwhile, hopes that legislation and resorts can learn from her accident. “I’m sure some lawsuits are petty,” she wrote, “but some aren’t. Some lawsuits are substantial and can serve as an agent for positive changes in policies and regulations to further protect people, their safety and their rights.”  PJH

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