Civil lawsuits an inherent part of skiing?
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When news surfaced earlier this season that a 60-year-old Pennsylvania man had sued an 8-year-old skier for a collision they had on Beaver Creek Mountain, comments flooded local and national news Web sites in disgust.
The public outrage was so harsh that the Pennsylvania man requested a gag order for the boy and his family in an effort to prevent them from talking to the media any more about the case. The gag order motion, which a judge later denied, cited multiple threats to the plaintiff and his family as a result of the media coverage surrounding the case.
While the case of an 8-year-old being sued was out of the ordinary, skiers sue other skiers and ski resorts all the time.
Skiers have a lot to worry about when it comes to potential lawsuits, says Susan Swimm, the Eagle-Vail mother of Scott Swimm, the boy who was sued.
“It completely changed my outlook on skiing,” says Swimm, a Scottish citizen. “I’m scared to go on the mountain now. I’m terrified of somebody suing us.”
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In the Swimm case, everybody lost, Susan Swimm says. David Pfahler, the man who sued Scott Swimm, tore a tendon in his shoulder and sued the Swimms for lost vacation time, physical therapy and other expenses. He sought $75,000 from the Swimms ” something Susan Swimm says was just “heinous.”
“This wouldn’t have happened in Europe,” she says. “This is such a litigious country. I feel like everybody is going to sue everybody.”
The state Legislature, when it amended the Colorado Ski Safety Act in 1990, added a lot of liability protection for ski area operators because the lawsuits against them were getting out of hand, says Peter Rietz, an attorney who has represented Vail Resorts for more than 20 years.
People were suing the ski resorts for anything and everything that happened to them on the mountain, and the sheer volume of lawsuits caught the attention of legislators.
The amendment to the ski safety act added “inherent dangers” into the language in the law, something the legislature did “to mitigate the number of lawsuits,” Rietz says.
Inherent dangers, as defined in the Act, include anything from weather and terrain conditions to collisions with trees, man-made objects or other skiers.
Inherent dangers do not exempt ski resorts from their duties to make the mountain as safe as possible, as defined in the negligence section of the Ski Safety Act.
Negligence happens when ski area operators violate any section of the Act, which is up for interpretation by a court of law.
Scott McInnis, a Denver attorney and former Congressman who represented a ski resort district for 12 years in the Colorado legislature, was a big supporter of the Ski Safety Act. He said skiers were suing the ski areas so often that ski resorts had to increase lift ticket prices just to cover their legal fees. The act was important because it made sure skiers could only sue the ski resort for what it did wrong, “not for what a reckless skier does to another skier,” he says.
People were suing the resorts instead of each other because when people lacked insurance or the means to pay huge damages, the injured and their attorneys turned to the ski resorts because they have “deep pockets,” Rietz says.
“They would sue for all sorts of things that I would consider to be groundless allegations,” Rietz says.
Jim Chalat, a Denver personal injury attorney who represented Pfahler and represents numerous other clients in ski-related lawsuits, says the cases he takes on involve “hideous accidents.”
“These are cases where people suffer very serious injuries with life-changing consequences,” says Chalat, who has represented clients who have been paralyzed and clients whose family members have died in ski accidents.
The idea that he or other personal injury attorneys take on so-called “frivolous” lawsuits is absurd, he says.
“The punitive consequences in the real world of filing frivolous claims are so harsh that lawyers do not (take on such cases),” he says.
Defendants like Swimm disagree, pointing out that a torn shoulder tendon is hardly a serious injury with life-changing consequences. Regardless, all kinds of lawsuits happen and Swimm wants people to be aware of the dangers of skiing that aren’t on the mountain, but rather in the courtroom.
In her family’s case, which Chalat says has not been settled yet, Swimm is thankful she has a personal liability component linked to her family’s homeowners insurance that should cover any settlement reached and her legal fees.
James McGalliard, a partner with Alpine Insurance, Swimm’s insurance company, says the component is a smart thing for people to have, especially for skiers, because “we live in a country where people are suing everyone.”
The Ski Safety Act might seem like all it does is protect ski operators from lawsuits, but it protects the skiers too, Rietz says. The act provides predictability for skiers, he says, referring to the regulations that it imposes on ski resorts. Ski resorts are required to mark difficult terrain, out-of-bounds areas, merging trails and slow zones, to name a few.
Chalat says it’s that liability that creates a safer environment for skiers.
“Ski operators typically do a very good job of marking the warnings. The reason is because they’re responsible if they don’t,” Chalat says. “Liability breeds caution.”
The act tells ski resorts to mark any man-made “obstructions,” such as lift towers or hydrants, that aren’t visible from 100 feet away. It also tells resorts to pad such objects in an effort to lessen the impact if someone accidentally skies into them.
Originally enacted in 1979, the Colorado Ski Safety Act says skiers choose to ski and know the risks associated with skiing, therefore assume most, and often times all, of the responsibility when injuries happen.
There are areas where the resorts do appear to have more responsibility, such as with ski lifts, but even ski lift accident cases aren’t a slam-dunk for people suing the resort.
The Colorado Passenger Tramway Safety Board, established in 1965, inspects and regulates ski lift devices ” lifts, t-bars, gondolas and other skier lifts. The state does three types of inspections every year to make sure lift design and safety standards are up to code.
Most ski lift-related injuries happen during loading and unloading, though, so the liability would likely still be that of the skier’s, according to Chalat’s Web site on ski cases. Negligence, however, could be proven if the ski operator failed to maintain the snow on the unloading ramp or if it failed to stop or slow the lift down for “known inexperienced skiers.”
A public records search in the Eagle County Court turned up more than 60 personal injury and negligence lawsuits against Vail Resorts during the last six years. Many of the cases were dismissed.
Vail Resorts would not comment on what kinds of lawsuits or how many lawsuits it receives each year, but a spokeswoman says the “safety of our guests and our employees is our top priority.”
“We are committed to helping our guests educate themselves about their responsibility on the slopes according to the Colorado Skier Safety Act, and are continually enhancing our skier safety program,” said Kelly Ladyga, spokeswoman for Vail Resorts, via e-mail. “In fact, the National Ski Areas Association has recognized Vail’s excellence in skier safety programs for seven consecutive years.”
Lauren Glendenning can be reached for comment at 970.748.2983 or Lglendenning@vailtrail.com.
