Warnings may be implicit or implied, and a practicing attorney is in a better position to advise you in total than am I. However, as a much-used “expert” in skiing accident litigation, I can at least give you some benefit of my experience in such actions that involve “failure to warn.”
There was a case in the midwest involving a trail closing, and yet the preponderance of evidence placed before the jury could support the plaintiff’s contention that the trail was not closed. He had several witnesses testify that the trail was not marked “Closed” and therefore the plaintiff was not negligent himself in the use of it. The area, of course, testified that the trail was closed to the public, and supported this claim with testimony from several Ski Patrollers. The problem was that there were more “witnesses” who claimed “open” than those who claimed “closed.” The jury, being made up of non-skiers, could not do more than weigh the evidence they heard. They couldn’t be expected to know that merely because the lift at the trail was not operating and that there was fresh powder eight inches deep, untouched, on a Saturday afternoon when the area was crowded, that there was an excellent chance that the trail was indeed closed. The witnesses for the plaintiff said they saw no warning that the trail was closed.
According to the defense witnesses, the “warning” of trail closure was a sign at an upper access trail that said “Trail Closed.” Now ask a driver if he ran through a stop sign and what will he tell you? “I didn’t see any stop sign” is the usual reply to avoid self-blame. Of course, if the stop sign is on a steel pole embedded in concrete, it is hard to say it wasn’t there. But if a “Trail Closed” sign is merely stuck in the snow it can readily be knocked down or flung into the woods by a skier who wants to ski the unbroken snow.
The problem is that illogical conditions (in the minds of skiers) can be ignored by non-skiers through complete ignorance of our sport, facilities and usual operations. In order to make the operations more “logical” to a lay person (or juror) we must place ourselves in his shoes and do what we think is logical for an unknowing non-skier in terms of warning of risks ahead. Then, failure to warn may be diminished as a valid claim against the area.
I remember a group of us skiing in fresh powder in Utah some years ago. We went from one open slope to another through some woods and found, at the bottom, that we had gotten onto a closed area. A ski patroller rightfully chewed us out. But actually, although the access to the top of the closed slope was clearly marked “Closed,” we entered it below through some woods. I suppose it might be said that we were negligent in going through an unprepared area and therefore assumed the risks ourselves. But I wonder how it might have been treated in a court of law — especially how it might be treated today.
The answer to “failure to warn” is not simple, I’m sure. But at least it might be well for all areas and Ski Patrols to take the time to assess their methods of warning to be sure they would appear logical to a juror unfamiliar with the sport of skiing.
What really strains my logic and technical understanding is that people mistake “failure to warn” for “ignorance of the activity.” Cities do not warn motorists of every pot-hole existing in their streets. Highway warnings are not used for every turn of the road. Drivers are expected to know of the inherent risks of travel by automobile (and they are high relative to skiing). Yet, most jurors who are drivers must be “told by experts” of the risks in skiing (low rate by automobile travel standards). There are those amongst us who would have a jury believe that there is little, if any, risk in skiing and that injuries are always the result of someone else’s negligence, such as “failure to warn.”
Somehow we must get the message across to skiers that they must use good judgment and understand that every endeavor has some risk involved with it, even skiing.
One example of “failure to warn” as it applied in a recent case with which I was involved was as follows: A midwest area rented equipment to a young man who later injured himself on the area slopes. He said that he knew “bindings should break out” whenever he fell. He fell, the bindings didn’t “break out” and he injured himself. He used this as an indication that the area “failed to warn” him of the hazards of skiing and, incidentally, was negligent in its adjustments of his bindings. The rather humorous thing was that he himself stated that he had fallen many times prior to the accident on the same equipment, had no releases and was not injured. He further implied that he was glad he fell in ways that would not injure him. In other words, he admitted that falls could produce injury (inherent warning) and that bindings do not “break out” whenever one falls. Yet, he still made the claim of “failure to warn” and “non-release” of the bindings upon falling.
“Damned if you do, damned if you don’t” is the cry of many litigants. Nevertheless, it is wise to put on your “hat of ignorance” of the sport and ask yourself, “What should I do to warn that skier of the risks he should assume?” Also, be sure your warning techniques are not easily removed or ignored lest a plea of ignorance be successfully used.
I captured my classic example of a “warning” on a 35mm slide and use it in lectures. It was taken at one of my favorite places, Vail. It shows the rim of a steep bowl with a sign that says, “Danger — Avalanche Area,” and then there are two ropes across the rim, one about two feet above the snow and the other about four feet up. On the ropes are colored pendants so they can be seen easily. This was super redundancy with no ambiguity whatsoever. But there, under the rope and right next to the signs, are two ski tracks leading over the rim.
If that skier had hurt himself I suppose he would have claimed the area was somehow negligent in “failure to warn”.
