With all the excitement being generated by the Next Games, the X Games, and the emphasis on more and more freestyle terrain features, it is fitting and proper for resorts to be focused on steps that they can take to avoid injuries to their guests in those areas. Resorts should, however, remember that simple slips and falls remain among the most common causes of injuries to both employees and guests. Risk management strategies should include a comprehensive plan for this routine but potentially severe and expensive type of loss.
It’s easy to overlook them. Slip-and-fall cases are not very sexy—they do not grab your attention like a bad crash in your terrain park or on the tubing hill. Slip and falls tend to be mundane, even comical, events. (See any early Warren Miller film.) Moreover, these types of incidents can take place anywhere at the resort, so they have a tendency to slip (no pun intended) through the cracks in a loss control plan.
How much attention do these types of incidents deserve? Plenty. One ski area was found negligent when a delivery person slipped and fell on a set of stairs after making a delivery. Finding the worker’s compensation award insufficient, the injured party sued the resort and a jury awarded him $4.2 million. While such a large award is rare for a slip and fall in the winter resort context, it is fairly common in the general premises liability arena, where awards in the six figures are not uncommon and payments in the $5,000 to $10,000 range are routine. And any amount paid is money that could be better spent elsewhere in your operation.
Know the Law
How can you prevent this type of loss? A basic starting point for a comprehensive liability protection plan is a thorough knowledge and understanding of what your duty of care is under the law of your jurisdiction. Generally speaking, a landowner owes a duty of reasonable care to all who enter the property. In other words, you have a duty to make sure that there are no dangerous conditions that could cause a patron harm. If you find a dangerous condition you have a duty to remove it or to warn your patrons of the danger. If you fail in any one of these areas you may be found liable if your failure substantially caused the patron’s injury.
The law in some jurisdictions, like Michigan, Vermont and Colorado for example, makes a distinction between persons entering your property based on the purpose of their visit. A licensee is a person who enters your property for their own purpose but with your permission. For example, a utility representative who enters your property to read a meter or check some lines would be considered a licensee. An invitee is a person who enters your property for the purpose of conducting business with you. An example of this class of people would be your skiers and snowboarders, hotel guests, etc. In jurisdictions that adhere to this distinction among visitors, you would have a greater duty of care to an invitee than a licensee, the rationale being that you and the invitee have a mutual interest (conducting business). That duty remains one of reasonable care as described above.
The good news is that most states have acknowledged that a property owner is not an insurer of the safety of their guests, meaning you are not responsible just because someone gets hurt. But the duty of care applies to your property, both indoors and out, and there are some peculiarities to each area that merit specific mention.
Outdoor and Indoor Issues
A claim of negligence based on a slip and fall on snow and ice at a ski resort almost sounds like a bad joke, but the fact is these types of claims are not uncommon. We know from experience that guests do slip and fall outdoors, and they do try to blame your resort.
How far do you need to go avoid the blame? Again, knowing the law of your jurisdiction will tell you your duty of care. Some states, like Massachusetts and Ohio, make a distinction between natural and unnatural accumulations of snow and ice. In other words, a landowner has no duty to remove natural accumulations of snow and ice, because it is assumed that people will understand that winter weather can create dangerous conditions from snow and ice.
However, once a property owner takes some measure to remove it, alter the condition of it, or if time and customer traffic alter the condition of it, then it may be deemed an unnatural accumulation. And you then will have a duty to use reasonable care in removing it. Another example of an unnatural accumulation of ice would be where a pipe or downspout drips water, creating an ice patch on a walkway. If the unsafe condition can not be removed or remedied, then you have a duty to warn of the dangerous condition.
The greatest indoor problem areas can best be described as “transition zones.” These are areas where people are moving from one temperature or elevation or walking surface to another, such as outside to inside, cold to warm, up to down. For example, a guest comes in from the cold, snowy outdoors into your base lodge. He is covered with snow and appropriately bundled for the elements. In most base lodges he will first enter a vestibule with a floor grate, where some of the snow will be shed. Once he enters the base lodge, the ambient temperature will shoot up, the snow on his clothes will start melting, and his goggles will begin to fog. If there is a stair or a smooth-surfaced floor in front of him, then you may have a “perfect storm” of transitions.
Preventive Steps
You can prevent accidents from occurring in such situations through awareness, inspections, training, and smart decision-making.
Awareness. To the extent that you have read this article to this point, you are (or should be) as the saying goes, forewarned, and thus, forearmed. Armed with knowledge, you can now take additional steps to protect your employees and guests from injury.
Inspections. One of the best ways to protect your resort against slip or trip losses is to scout for potential hazards before your guests find them. Vigilance is the key, and the phrase “all hands on deck” comes immediately to mind.
As for keeping a record of your inspections, there are differing schools of thought. Some defense attorneys prefer that their clients keep no records, believing that the records will do more harm than good. Other defense attorneys believe that having a record of the inspections will be an invaluable aid in your defense. All of the attorneys will agree that if you decide to use a record keeping system, the documents that are generated will be discoverable by plaintiffs’ attorneys. So to that extent, you need to make sure that 1) your staff is trained on how to fill out the reports, 2) that the records are reviewed by management so that any necessary follow up is done in a timely manner, and 3) the records are stored in a safe place for retrieval when needed.
Training. A good loss control program will include employees trained in hazard recognition. Training requires education both of your obligations under the laws or codes of your jurisdiction as well as the peculiarities of your property. You should look at past loss runs or incident reports for identification of problem areas in addition to reviewing your transition zones.
Lighting. Poor lighting is a common complaint in trip and fall cases. The allegation is that the lack of lighting or insufficient lighting caused the guest not to see the step up or the step down, typically after dark. But consider the patron who comes in from the slopes on a bright sunny day and transitions into a poorly lighted base lodge. Make sure your transition zones are properly lighted to avoid a needless claim.
Railings. A classic transition zone is a stairwell. Stairs and railings go together like salt and pepper, burgers and fries, oil and vinegar. Be sure that you comply with all applicable building codes.
Non-Skid Surfaces. Snow sticking to ski boot soles is common and, when combined with a smooth surface, it can be a recipe for disaster. Even without snow, a new ski boot and a smooth walking surface can pose a danger to even experienced skiers. Many resorts use mats at or near entranceways to help collect snow melt so that the floor does not become wet and slippery, but the mats can also be, or become, a tripping hazard. Inspect them frequently to be sure that you do not swap one hazard for another.
Warnings. If you can not eliminate a hazard, then you have an obligation to warn your guests about it. Obviously, this loss prevention tactic is dependent on the proper training of your employees and regular inspections of your property.
Investigations. Quick: if someone falls on the walkway between the parking lot and the base lodge, who is in charge of investigating it? Again: if the guest trips on the way from the lodge to the lifts, who is responsible? How about if a person falls in the restroom? What if an employee trips and falls on the way out the kitchen door? If you can’t readily identify the staff person responsible, then you have a hole in your loss control plan. If you responded by saying ski patrol, then you may have a different problem (stretching their duties too far from the hill).
Time and Temperature. For most slip- or trip-and-falls, the functions of time, and if outdoors, temperature, are key elements to the liability equation, and they should be carefully noted in the investigative file (in addition to the above-mentioned items that apply).
Many of the areas outlined above are covered in some form or fashion by your local building code, so you should make sure that you are familiar with all of those requirements. Remember, to the extent your resort is found to be in violation of a particular code, it will be used as evidence of your negligence. To the extent that you are in compliance with a code, that can be used as evidence to show you were not negligent. The bottom line: building code compliance is the law.
It is exciting to see the evolution of the sport on the hill, and it is appropriate that your loss control efforts reflect those on-hill innovations. But do not let the excitement cause you to lose focus on the more mundane aspects of your operation. Accidents in these areas can be just as serious, and as costly.
Richard Donahue is a claims specialist with Willis of New Hampshire. E-mail him at [email protected].
