Sunday v Stratton
…an update and an idea
These are nervous days for the ski industry as we watch the after-shocks of the now famous $1.5 million award to a young quadraplegic by a jury in Vermont this past summer, after the presiding judge poleaxed the standard “assumption of risk” defense. At presstime, the appeal had been filed and earnest strategy discussions were being held to find the most effective possible combination of arguments and amicus curiae briefs to bring to bear.
The most immediately concerned, of course, are Stratton and the insurance carriers. The next most concerned group is the Vermont Ski Areas Association, because if the award is affirmed on appeal, then it becomes set in concrete for Vermont, and in the absence of legislative relief, all Vermont areas would be placed in what many think to be an untenable insurance position. It seems probable that a brief from VSAA will be welcome, especially as an exceptionally competent and savvy attorney, Richard Davis, has been retained by the association.
Every section of the ski world is affected, however, if Judge Wynn Underwood’s thinking is given free rein. The ski consumers (who might be represented by the U.S. Ski Association’s attorney) must worry about the increased lift ticket prices that higher insurance rates would bring; the ski equipment manufacturers (who might be represented by SIA’s attorney) would be concerned by the sport pricing itself out of growth; the nation’s ski areas (who would be represented by NSAA’s counsel) are worried. But, you can overload an appeal with briefs.
And this is what is going on now: a lot of intense planning, coordinating and orchestrating of effort.
Obviously the case worries us all, and we all want some nice, easy solutions. “What,” we implore the insurance geniuses, “what do we do now? Tell us! Don’t just take more money from us! What’s the answer?”
And it comes as a bit of a shock to learn that there really are no simple answers. Our whole society is caught up in this litigious binge of sue, sue, sue. We all know about the doctors and their $50,000 or more malpractice insurance premiums. Our schools are finding it hard to get insurance at any price. And now, like a bunch of blood-crazed sharks, the lawyers are turning on themselves and hauling each other before the malpractice bar.
I like to think the public will eventually wake up to what is happening: that, as jurors, they are not dispensing the ill-gotten gains of a heartless insurance company, but squandering what are, in a sense, their own savings.
But in the meantime, we cannot wait for time and public perception to come to our aid. We must take positive action.
The best first step I have heard suggested is that we put together a small task force (for heaven’s sake, let’s not call it a committee, ad hoc or otherwise!) that would study all aspects of the problem and recommend a comprehensive battle plan, both for near term and for longer term. Such a task force would include a skilled attorney, an experienced insurance expert, a smart ski area operator, someone with deep legislative background, a representative from the skiing public (i.e. a top elected official of USSA), a strong representative of the financially muscular SIA, and, perhaps most importantly, a highly knowledgeable communicator, familiar with the ins and outs of the media, both ski and general.
Such a task force could give our industry needed direction, because we cannot long continue merely reacting, crisis-by-crisis, sticking fingers in dikes.
I suspect that the task force would perceive a need for a massive skier education program. Such a program might ultimately help get state laws on the books which could give our industry some legislative relief. But the principal benefit from the program is that we could start to teach the skiing public—especially those new to the sport—that there are dangers inherent in skiing.
It may be bad PR, but on the other hand, cigarette sales have not been hurt by the Surgeon General’s warning on every pack and in every cigarette ad. And remember, once warned, the smoker is probably accepting the dangers that inhere in the activity. Similarly, if it can be demonstrated that the skier had a reasonable perception of the dangers that can attend the sport, then it is possible that in many cases, contributory negligence could successfully be laid to the skier.
It is well to remember that Judge Underwood took issue, not so much with the assumption of risk doctrine as such, but with its application where the dangers that are supposed to inhere in it are not obvious and necessary. What he seems to say is that if you promote the fact that your slopes are beautifully groomed, the dangers involving the condition of the surface are neither obvious nor necessary and the skier doesn’t have to accept them.
The ski publications can help here by educating the influential hard core of skiers they reach so well. A good start has been made in the September issue of Skiing where editor-in-chief, Al Greenberg, discussed the Sunday v. Stratton case. “It is neither reasonable nor possible to require a ski area to maintain its slopes in a hazard-free condition,” he writes. He points out that environmental constraints will often prevent an area from manicuring the slopes to the golf course fairway standard cited by Judge Underwood. He also points out that a logical extension of the judge’s thinking would mean eliminating all moguls, banning glade skiing and so forth. And Greenberg is explaining these facts of life to skiers.
This is good, as is the fact that Ski magazine has a major feature coming up on liability and its impact on the skier.
This education effort would also involve a much greater indoctrination of beginners in matters of safety in such a way that they better perceive the possibilities of encountering bare spots, ice, moguls, soft snow and other hazards which, Judge Underwood notwithstanding, a ski area is going to face no matter how conscientious the grooming. Perhaps there should be periodic loudspeaker cautions as to such hazards.
Frankly this sort of thing really goes against the grain of most of us who grew up in the sport, and love it partly because of its dangers and our ability to master these dangers. Same with mountain climbing, fox hunting, steer roping, white water canoeing and many others.
But, distasteful though it is, we have to do what is necessary to protect ourselves, and if warning the public is what we must do, then let us do a masterful job of it. Again, coming back to the cigarette analogy, it is ironic that we get sued right and left, while the dispensers of cancer, emphysema and heart disease have been made virtually immune to legal proceedings because they warn the public.
The effort to educate the public will also help get legislation passed in the state legislatures. The draft of model legislation distributed by NSAA contains a significant section headed “Skiers’ and Passengers’ Responsibilities” which, as Cal Coniff correctly states, “breaks new ground and is the heart of the matter:”
It is hereby recognized that Alpine or downhill skiing as a recreational sport and the use of passenger tramways associated therewith may be hazardous to skiers or passengers, regardless of all feasible safety measures which can be taken. Therefore, each skier and each passenger shall have the sole responsibility for knowing the range of his own ability to negotiate any slope, ski trail or associated passenger tramway, and it shall be the duty of each skier and passenger to conduct himself within the limits of his own ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others. Except as otherwise specifically provided in this Act, each skier or passenger shall be deemed to have assumed the risk of legal responsibility for any injury to his person or property arising out of his participation in Alpine or downhill skiing or the use of any passenger tramways associated therewith. The responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of the skier or skiers involved in such collision and not that of the ski area operator.”
It won’t be easy to get the above, or similar wording, through the legislatures, but it is important that the effort be made, and I think an informed ski electorate, especially in states that are sensitive to the skier vote, can be helpful.
David Rowan
Update on Energy
by S. Locke Bogart
Since the spring issue of Ski Area Management, the structure and direction of the President’s energy policy has slowly materialized. As expected, both voluntary and induced energy conservation have emerged as the policy’s foundation. Curiously, expansion of production of conventional energy resources is not emphasized except for coal and nuclear electricity. The domestic oil and natural gas industries appear to have been left to fend for themselves within the constraints of a severe regulatory and tax framework.
Whether the Congress (the Senate) will permit implementation of the President’s energy policy as it stands remains to be seen. However, it is sensible to assume that the conservation portions of the package will survive and that some elements of the oil and gas production package will not. Specifically, it is hoped that exploration and production incentives will be substituted for the rebate scheme that presently is being considered.
How then, will the energy policy package affect the ski area industry? In the near term very little impact can be expected simply because the machinery to implement the policy will not have been put in place. The longer term is uncertain but one can expect to see mandatory conservation measures imposed on energy-intensive industries.
The fate of the transportation sector is the least resolved and is the greatest problem. This is the sector that depends most heavily on imported oil, the supply of which is subject to complex social and economic factors. Even if the imported oil supply is not disrupted by warfare in the middle east, there are indications that the world demand will exceed supply within five to ten years.
In the Spring 1977 issue of SAM, ski area owners and management were advised to start moving away from substantial dependence on liquid and gaseous fuels. Nothing has changed. In terms of transportation, the only recourse is to negotiate with mass transit companies and, more specifically, bus lines. At the same time, it may be desirable to arrange for accommodations in the vicinity of those areas normally not dependent on overnight clintele. These measures should be taken despite the fact that the crisis may not hit next year or even within three or four. What you are doing is buying insurance against what the smart money is saying is bound to happen. Carefully choose from among your options at a level of risk appropriate to the conditions prevailing in your region.
In terms of ski area operation, there are more options to consider. First, consistent with turning away from liquids and gases, negotiate with the local utility (presumably coal or uranium fueled) to utilize power during off-peak periods.
Second, inventory your energy needs to determine where efficiency improvements can be made. While substantial improvements may take time and money, the very act of documenting your efforts may have high public relations value in the future.
Third, look toward waste energy utilization and, perhaps, adventure in solar energy. For example, air compressers used for snowmaking are not very efficient and the waste energy comes off as relatively high temperature heat that could, with inexpensive storage, provide the area’s space heating and cooling needs. With respect to solar energy, it is evident that this technology shows considerable promise for providing low-grade heat; in fact, commercialization is now underway, and well-engineered systems are cost effective. Furthermore, both the investment and political climates are very favorable for this technology at this time.
Finally, it is not too soon to cultivate your relationship with your respective members of Congress. This should not suggest a special interest lobbying effort, but rather an honest gesture of support. The energy problem is so severe that very unpopular legislative measures must be taken. A Congressperson is acutely sensitive to political forces and your support can help relieve the pressures and permit him or her to make the right decisions.
