It all started back in 1974 when a young student, James Sunday, of Burlington, Vt., was skiing at Stratton. Sunday was a rank novice, and he was being shown the ropes by a friend. They were on a 20-ft wide trail which is actually a summer access road for vehicles and tractors. Sunday fell and hit his head on a rock off the trail. In his suit he claimed his ski had caught on underbrush under the snow, causing him to fall. He is now paralyzed from the shoulders down, has no excretory control and faces the rest of his life in a wheelchair.
The jury, three of them skiers, and evenly divided between men and women, found Stratton 100 percent liable for Sunday’s accident.
The whole thing came as a numbing surprise. The case had been fought vigorously by skilled counsel, and mountains of evidence had been introduced with the help of the best expert witnesses available. By any measure it was a strong and persuasive defense.
True, a young paraplegic is always an object of considerable sympathy, and much evidence and fact and reasonableness goes down the drain when a jury emphathizes with such a plaintiff. Jurors can feel good in “redressing a wrong” especially when the money comes from “THE SYSTEM” which can afford it and helps the young individual who cannot.
But it was the size of the award, the judge’s ruling and the totality of the plaintiff’s victory in the face of fact, precedent and reasonableness that alarmed the ski industry. And with good reason: regardless of what happens on appeal, much of the damage has been done.
The headlines alone were the kind that can alarm an underwriter who seeks some measure of stability: “$1.5 Million is Awarded to Paralyzed Vermont Skier,” read the prominent story in the New York Times. Worse, the judge had been ready with a prepared statement when presented with a routine motion by the defense to dismiss the case. “The capacity of ski areas to improve trail and snow conditions, and the skier’s increasing reliance on these improvements makes the issue of the duty of care of a ski area operator a question for the jury, and every skier should not be barred as a matter of law simply because there are some inherent risks in the sport.”
In saying this, Judge Wynn Underwood of the Vermont Superior Court brushed aside one of the pillars of ski area case law, the classic Wright vs Manfield case of 1951, when Judge Gibson invoked Cardozo in establishing that a skier assumes some of the risks inherent in the sport. (“The antics of the clown are not the poses of the cloistered cleric; Let the timorous stay home!”) The skier was supposed to understand that snow conditions could change and that there could be hidden dangers beneath the snow surface.
But Jim Sunday’s attorney, Alan Sylvestor, had confronted Wright vs Mansfield head on. Whereas today, the argument went, we have sophisticated slope grooming procedures, “in the 1951 case the situation was entirely different.” He pointed out that a girl had then testified that she expected to encounter hidden stumps on the slopes, whereas today’s skier, according to Sylvestor would expect no such thing.
Judge Underwood obviously agreed. “The novice ski trail of today is a far cry from the stump and rock-strewn slashes of the sides of the mountain in 1951. Now the stumps and rocks are removed with bulldozers and the holes are filled in.” He went on to say that area ski patrols had a responsibility “to constantly inspect the trails and erect warning flags around the hazardous spots and to close off trails that are too dangerous because of hazardous conditions.”
If the decision is upheld — and there is good reason to believe it won’t be — areas will have to get a lot of answers: What standard of care is suggested by the decision? Is Judge Underwood’s putting green perception of what a ski slope looks like going to be a universal standard? Does a ski area which promotes the quality of its groomed slopes in fact invite the public to expect universally perfect conditions? Will a ski area be remiss if it ever has a bare spot, a patch of ice or a wind-blown twig on the slope? If a patrol is to “constantly” erect warning flags around the “hazardous” spots, who is to say what constitutes a hazard, and does it imply that each and every such hazard (let’s say bare spots in spring conditions) must be marked?
Of course, before we press panic buttons, it is well to remember that Sunday vs Stratton is still just case law. It should be seen as the handiwork of one Vermont judge and one Vermont jury and not as precedent-setting. Furthermore, there is a good chance for a reversal in the appeals court. (For instance, a possible reversable error occurred when the judge failed to order a new trial when some jurors were seen reading in the newspapers some items that had come before the court with the jury absent.)
But, even if the decision is overturned, or the award reduced, a lot of the mischief may have been done. The insurance markets will have noted the serious erosion of the defenses on which our industry has been based. Plaintiffs’ attorneys will recognize that Wright vs Mansfield can be successfully challenged. And the net result of all this could be further nervousness and instability in the insurance market.
What can be done? Is our industry helpless?
Right now, the best thing for our industry to do is to keep cool and quiet on the juridical front while the appeal goes on. (Headlines and angry letters in the press hurt at this stage, and they don’t help keep the insurance market calm either.) At the same time, our industry should remain active on the legislative front, because if Wright vs Mansfield is to be neutered in the courts, then the need for legislative relief is more imperative than ever. As Rufus Barringer wrote in Spring SAM, “. . . the most claims in recent years, both in terms of frequency and of dollar amounts, have been the result of skier accidents where the skier himself was out of control and where, in pressing his claims, he asked the court to impose full responsibility on the area operator, assuming none himself . . . Legislatures could help by defining the extent of the responsibility assumed by the skier in undertaking this unique and sometimes hazardous sport.”
Getting such legislation on the books is not easy, as recent efforts in Vermont and New Hampshire have shown. A high percentage of state legislators are attorneys, with many specializing in plaintiffs’ work. But clearly, a way must be found to get the legislative relief, and NSAA’s work on model legislation takes on added importance.
Another point was made by an observer at the trial, that $1.5 million would buy a whole lot of Kodak Instamatic cameras, and that the case might have gone very differently had the defense been able to introduce a photo of the injured skier at the site of his injury, and showing the condition of the surrounding trail. Perhaps, it was suggested, every patrolman should be equipped with a camera as a vital part of his first aid kit.
Finally, no matter what other steps are taken, one comes back to the truism that the best way to avoid litigation is to reduce the number of accidents. Money spent on safety is wisely invested. The accident that doesn’t happen is a liability exposure not encountered.
