Law Review: The skier collision decision
Breaking ski legal news. You heard it here first, no doubt. The Goddess of Goop, Gwyneth Paltrow, is currently embroiled in a personal injury lawsuit with a certain Terry Sanderson for allegedly crashing into Sanderson while skiing in Park City, Utah.
Paltrow is a famous, one-time actress turned new-age healer pusher-woman. Sanderson is some guy that is now famous (perhaps infamous) for having a literal brush with fame. Fame begets fame. If only we could all be so fortunate.
The ongoing trial is a national spectacle, more for its tabloid appeal than its legal import. But its similarity to a 2007 case from the California Court of Appeal, Third Appellate District, Towns v. Davidson, presents an opportunity to discuss California skier collision law.
The facts of Towns center on two skiers skiing down an intermediate run at Mammoth Mountain Ski Area. The more advanced skier is making fast giant slalom-type turns across the run when he crashes into a slower, less advanced skier causing her to suffer serious injuries. The injured skier sued, the trial court dismissed her case as a matter of law, and the appellate court upheld the decision. The reason: the at-fault skier’s conduct was not intentional or reckless.
In general, we owe a duty to one another to use due care to avoid injuring each other. If someone breaches that duty by acting without due care and causes injury, that person may be held monetarily liable for negligence (i.e., a speeding driver that rear-ends a stopped car.)
But there are certain activities, due to their very nature and voluntarily participation in them, to which the duty of due care does not legally apply. Participants in these so-called inherently dangerous activities are deemed to assume the risks of the activity by mere participation. This “primary assumption of risk” doctrine has been upheld by courts so as not to “chill vigorous participation” that is necessary to the fundamental nature of such activities.
Take for instance an axe throwing contest. If you are accidentally hit by an axe while participating in the competition, that is a risk you assumed when signing up to be around a bunch of crazies throwing axes. If you could successfully sue the axe thrower for plain old negligence, people might just stop throwing axes altogether for fear of litigation, and then where would we be? Skiing is no different.
Various California courts have applied the primary assumption of risk doctrine to recreational snow skiing. The judicially recognized risks inherent to skiing “include injuries from variations in terrain, surface or subsurface snow or ice conditions, moguls, bare spots, rocks, trees, and other forms of natural growth or debris … collisions with other skiers, ski lift towers, and other properly marked or plainly visible objects and equipment.”
This is not good legal news for a skier injured in a collision. To prevail in a lawsuit, the skier must establish the injury resulted from intentional conduct or conduct “so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity.” Recklessness is defined as a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.”
Those are some lofty legal barriers to surmount if you get injured out there on the slopes in a collision. And it does not help that courts have expressly acknowledged fast and aggressive skiing as a “thrill” of the sport within the ordinary range of the activity not to be unreasonably deterred. Sanderson v. Paltrow in California would not break in Sanderson’s favor.
Now, if you get clobbered by an out-of-control, drunk gaper while stopped in front of a “slow” sign at the base of the bunny hill, you probably have a case. For the run of the mill collision? That is a risk you assume when clicking into those skis or strapping on that snowboard. A harsh legal outcome in many circumstances, but that’s the current state of California law.
So, be safe out there. Be aware of your surroundings. Ski within your limits. Or quit the sport and take up axe throwing. Hey. They say you are more likely to be killed by pigs than by sharks.
Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from personal injury to complex business disputes to construction law, and to all matters in between. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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