The Kickham Comment - Boston Accident Lawyer Blog
It’s January. It’s snowing. It’s Massachusetts. Add it up, and you’ve got plenty of skiers here. As just as much as going to the beach in summer is popular here, so is skiing in winter. Though not all skiing is downhill (vs. cross-country,) most is – and without a doubt, most of the injuries that result from skiing, involve the downhill variety.
Downhill skiing is dangerous business. Anyone who’s ever done it, can attest to this. Even the least challenging “Bunny Trails,” can pose significant risk to a skier – whether novice or experienced. Witness the death last year of Natasha Richardson, Liam Neeson’s late wife. She was on skis, but barely moving, and fell down, striking her head against an icy surface. She died from a subdural hematoma that resulted from the impact. True, most ski injuries result from moderate to high-speed collisions, but this tragic event illustrates the point: Skiing is very dangerous.
With that reality in mind, and considering the number of persons who frequent commercial ski resort operators in this state every winter (hundreds of thousands) you’d think that there would be a lot of injuries each year, and a lot of lawsuits against ski operators. You’d be right as to the first, wrong as to the second. Why? Because the ski resort industry, both nationally and in Massachusetts, is very powerful. A multi-billion dollar industry, the ski resort industry has successfully exerted their influence in both the Massachusetts state legislature, and in the courts, to limit their liability for injuries occurring at their facilities. The result, historically, has been a very hostile environment for plaintiffs seeking to hold commercial ski resorts liable for injuries that occur as a result of their negligence. In the past 20 years, successfully bringing such a suit, never mind winning one, has been a daunting legal task. The reasons have been due to a combination of very strict legislative enactments pushed into law by the ski resort industry, as well as judicial rulings that have been very hostile to plaintiffs.
In recent years, however, that ice (if you will) has begun to thaw. While the legal and judicial attitude toward ski injury plaintiffs used to be, “This is an inherently dangerous activity, you assumed the risk,” some recent case decisions have allowed victims of ski injuries, their day in court. While historically it was extremely difficult to hold a ski operator or fellow skier liable for negligence, that attitude may now be changing. Now, ski resorts are more and more being held liable for not exercising ordinary and reasonable care in the operation of their business. The legal attitude is changing from one that said, “Operators of ski resorts are not liable for any injuries by patrons using their facilities,” to “Operators may be responsible for injuries that are due to evidence of negligence.” Skiing related injuries usually involve collision incidents, and lift mishaps. However, it is collisions with poorly located signs and poorly marked obstacles that are generating the greatest change in judicial attitude these days, as well as injuries resulting from inadequate slope maintenance by resort employees. Injuries suffered in the course of ski instruction or while under the care of the ski patrol, are also receiving increased judicial attention.
Recently, a case brought by an injured skier in U.S. District Court in Boston, against Jiminy Peak Ski Resort of Hancock, Massachusetts, has generated significant attention among plaintiffs’ injury attorneys. A skier who was injured when she struck an inadequately marked snow gun, sued Jiminy Peak in federal court, arguing that that the ski resort was negligent in both it providing her with inadequate rented ski boots and equipment, as well as negligence in placing a snow gun in a traveled ski lane and failing to adequately mark it for visibility.
The ski resort moved for what is known as “summary judgment.” This is essentially a legal motion that asks the court to throw the case out, on the grounds that the plaintiff does not have a legally adequate cause of action. The resort’s motion was filed for both of the plaintiff’s two counts alleging negligence, above. While the court allowed the defendant’s motion on the negligence count involving the ski equipment rental, it denied the motion as to the count alleging negligence in the placement and marking of the snow gun. The court’s decision on the defendant’s motion, cited the Massachusetts Ski Safety Act, a legislative law governing ski operators’ liability in this state: “Though the Act imposes a duty on skiers to ski within their ability and avoid collisions, it is also the ski area operator’s duty to operate ski areas ‘in a reasonably safe condition or manner.’ … This duty is simply incompatible with the notion that a ski area operator could place an obstacle or create some other hazard on the skiable area of a trail and have no duty to mark the hazard. …The general duty to operate the ski area in a reasonably safe manner may in certain circumstances include a duty to pad specific obstacles. … As there are factual questions regarding the actual location of the snow gun in relation to the skiable area of the trail and whether it was adequately marked and padded, Defendant’s Motion for Summary Judgment will be denied as to this claim. Although the trial will present challenges for Plaintiffs, they are entitled to their day in court on this claim. …”
Hence, the plaintiff here will at least get the chance to prove her claim to a jury. Even this, would not likely have been allowed as recently as 10 years ago.
Hence, as a Massachusetts injury attorney, I can advise you that the laws in the area of ski injuries in Massachusetts, and nationally, are gradually changing to a more plaintiff-friendly outlook. Not perfect yet, but the legal atmosphere in this area of law is improving. And to the more conservative, pro-business types who don’t like these changes, I say: Exposure to liability like this, is what causes businesses – especially big business – to operate with greater safety to the public. The life that may be saved by such changes, may be your own.