Vail Daily column: Skier negligence in Colorado
January 6, 2013
Sadly, as an attorney who once defended parties against minor negligence and slip and fall claims, it is hard not see the potential for minor lawsuits in everyday life. The purpose of this article is to discuss the possibility for a negligence claim following a skier collision. Before we can entertain that topic, however, some background in legal negligence is required. From a basic legal perspective, there are four elements to any negligence claim: duty, breach, causation and damages. First, there must exist a duty between the parties. This duty can arise from a statute (like a traffic law), or by common law (as is the case with a property owner’s duty to a guest visiting his or her home). After a legal duty has been established, the next step in any negligence claim is to prove that the defendant breached the duty owed to the injured party. An example of a breach would be the actual action itself, like a small spill in a heavily trafficked area of the grocery store or a security employee who blindly allows access to a supposedly “restricted” area. After satisfying the first two elements, a party claiming negligence must prove that the defendant’s breach of duty caused the harm suffered by the plaintiff. Causation can be one of the more confounding and esoteric areas of the law, and for the purposes of this article we will assume that there is no issue with causation. Finally, plaintiffs must prove that they suffered damages as a result of the defendant’s negligence. The term “damages” almost always refers to monetary compensation for different categories of losses. In reality, many attorneys and judges calculate negligence damages by taking the “actual” or out-of-pocket losses and multiplying that number by anywhere from two to five, depending on the degree of negligence that can be proven. In Colorado, ski and snowboard negligence claims are almost always between two individuals. This is primarily because ski resorts are generally immune from prosecution under the Colorado Ski Safety Act. Under the act, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, and may not recover from any ski area operator for any injury resulting from any of those inherent dangers and risks. With there being little to no chance of recovery against the ski operator, most injured parties will institute a negligence action directly against the person that hit them. This makes ski cases unique in that injured parties are more likely to pursue an action against someone who has seemingly few assets from which to recover. The reason for this is that most home or renter’s insurance policies cover certain acts of negligence that occur outside of the home. This gives would-be plaintiffs a larger coffer from which to try and extract damages.As many local skiers and snowboarders know, there are universal rules in place on the slopes that are designed to prevent accidents and collisions. These rules have been codified and serve as the duties owed between skiers and snowboarders. Those who violate the common-sense rules could be found responsible for the negligent crashes and injuries that they cause. To be specific, some of the duties recognized under Colorado law are:• A duty to yield when merging onto another trail or beginning a run. • A duty to yield to other skiers with a right-of-way, such as those located downhill from your position. • A duty to not ski or snowboard in a way that makes it impossible for you to maintain control or avoid obstacles. • A duty to avoid a collision. • A duty not to stop on the trail suddenly, or in an area of low visibility. • A duty to obey caution signs, closed trail signs or other warnings.• A duty not to ski or snowboard under the influence of drugs or alcohol.Failure to obey these simple rules could expose a person (or a minor under his or her control) to a serious negligence action that could result in hundreds of thousands of dollars in damages. The best advice is to stay alert and make sure to always be aware of those around you. If you do get into an accident, take pictures and get names of anyone who may have witnessed the event. If you know that you were in the right, then be proactive to ensure that you have all of the information you will need to defend against a would-be negligence claim.Michael Brownlee is a partner with Thompson, Brownlee & Voboril LLC, a local civil litigation firm. For more information, contact Brownlee at 970-455-4226, firstname.lastname@example.org, or visit http://www.thompsonbrownlee.com.