The doctrine of inherent risk has been at the heart of ski area injury disputes for nearly 50 years. While this doctrine has taken its share of beatings at trial and appellate courts, two recent cases reaffirm its embodiment in our modern law.
The introduction of ski area safety statutes in the late 1970s and early 1980s put what had been judicial practice—application of the doctrine of inherent risk—into written law. These state statutes were intended to empower judges, as a matter of law, to determine whether the doctrine of inherent risk applied to a given case. If a judge decided that the doctrine of inherent risk applied, the judge would dismiss the case before it went to trial.
However, challenges to the skier safety statutes have resulted in some erosion of their authority as a bar to an injured plaintiff’s day in court. In all states, judges are required to interpret the laws narrowly, and it is now more often left up to juries to determine whether inherent risk applies. This is not only a very risky endeavor in a sympathetic forum where a plaintiff may be severely injured, but going to trial can be a costly process—even if the defense wins.
A Matter of Law
Bucking the erosion trend, the State of Michigan Supreme Court recently pumped some life back into the doctrine of inherent risk as a matter of law in Anderson v. Pine Knob. The claim involved a fall and slide by a competitor in a ski race who was severely injured when he collided with a finish line building, a structure which is traditionally, but not always, immovable.
The Michigan skier safety statute had received two knockdown punches before the case reached the Supreme Court. First, the trial court ruled that the “necessity” of the permanent and “unforgiving” timing building was sufficiently challenged as a matter of fact to require that the case be heard by a jury. Second, the intermediate appellate court agreed (consistent with decisions in Colorado, Utah, Vermont and other states), and ruled that the issue of whether this unprotected man-made building was an inherent risk was better left to the jury.
But inherent risk won in the end. The resort appealed to the Michigan Supreme Court, which reversed the lower courts, stating that the plain language of “obvious and necessary” applied and that the “necessity” of a risk need not be an absolute. The evidence was undisputed that it was necessary for the race event to have some protection for the timing at the finish of the race course, and therefore this particular timing structure met the plain meaning of “necessary” under Michigan law.
A Matter of Fact
In states where it is often up to a jury to determine the applicability of the inherent risk doctrine, resorts continue to see fairly good success in proving, as matters of fact, that the risks faced by the injured skiers and snowboarders are inherent risks. In these states, the emphasis is clearly on good post-loss evidence collection—including maintaining contact with witnesses and collecting photos and documentation.
A recent example: in a Vermont trial, a Windham County jury considered the case of teenage snowboarder who crashed in a terrain park in December 1999. He spent no time inspecting the park or the tabletop jump at issue and, on his first attempt, failed to complete a backside 180-degree spin. He sustained massive and permanent injuries to his spine, and his economic experts posted a proposed life care plan for 55 years at close to $4 million. The trial had to be moved from the Windham Court house (built in 1825) to the nearby U.S. Federal Court because there was no elevator access for the plaintiff in his wheelchair.
Several days of testimony included engineering theories by plaintiff’s experts, who argued the unreasonable danger of the projected (and expected) fall height from this tabletop jump and the area’s failure to maintain the jump consistent with industry “guidelines.” Compared to other jumping sports, they argued, this jump created unreasonable and unwarned risks because it would launch jumpers beyond a height allowing for a safe fall, regardless of whether the boarder was in control. The plaintiff also challenged the application of the inherent risk doctrine here, claiming that these jumps were not “necessary” to snowboarding in general, as not all riders need to encounter tabletop jumps in order to participate in the sport.
After two hours of deliberation, the jury returned a verdict in favor of the area, which had defended itself with good documentation and witness testimony. The jury found that although tragic, the teenager’s injuries were the result of an inherent risk and not any negligence in the design or maintenance of the jump by the area or its employees. The jury’s verdict appeared to acknowledge that part of the “sport” for the teenager was his desire to separate himself from the earth, thereby creating the obvious and necessary risk that he would return with some force.
Inherent risk lives—as a matter of law and as a matter of fact.
