For the past five years a ski area in Virginia has been defending itself in a lawsuit that turned into one very bumpy ride—not just for the resort, but for the entire ski industry.
On June 21, 1997, a James City, Va., firefighter who suffered a brain injury in a 1992 skiing accident at Massanutten Ski Resort received a landmark $6.17 million verdict. The accident occurred after the skier, Thomas Hoar, fell off the edge of a man-made drop-off from a black diamond trail. According to witnesses, the skier lost control on the run after crossing his skis, flipped over two or three times and went over the edge.
According to the plaintiff’s attorneys, the site where the skier went over was unreasonably dangerous because it was man-made and had no natural treeline delineating the edge of the trail. In addition, according to the plaintiff, the resort had started to put in poles for a warning/barrier fence, but the fencing had not been completed at the time of the accident.
The defense attorneys for Massanutten argued that the poles were meant for a fence to catch snow, not for a warning fence and that the finished fence would not have even been at the site where the skier dropped off.
During the week-long jury trial, the experts and lawyers argued back and forth where assumption of risk and where negligence should fall in a case such as this. In Virginia, there is no statute that addresses either assumption of risk or inherent risk in the sport of skiing. Nonetheless, the plaintiffs held that an unmarked, man-made drop-off is not an inherent risk of skiing.
In the end, after 10 hours of deliberation, the jury came out with what many refer to as a sympathy verdict. Hoar, as the jury learned during the trial, will never live outside of a special care facility due to the severity of the head injuries. His wife and child were suing in part to be able to remove him from a nursing home and place him in a specialized trauma facility.
As a result, Massanutten filed a motion to set aside the verdict on the grounds that the jury’s decision was not based on legitimate evidence. On August 11, the motion was heard and the same judge, Joshua Robinson, who presided over the jury trial, rejected the jury’s finding that Massanutten was responsible for the skier’s injuries.
Judge Robinson found that Hoar lost control through no fault of the ski area and that the accident, though unfortunate, was a result of the risks inherent in the sport.
“This case was very basic,” said Christopher C. Spencer, Massanutten’s attorney. “Whether the slope was man-made or natural, it is what it is, which is a hill, and the standard is the same.”
One of the bigger questions in this case was why the judge hadn’t simply interrupted the trial or thrown the verdict out after it was delivered. But, according to Spencer, “Only in the most extreme cases can a Virginia judge short cut a case. It’s best to let a case run its course and go back in and fix it later.”
It is expected that the plaintiff will appeal this decision, but it will be a long, hard road. In Virginia, the courts are set up so that the next step is to try to get it heard by the Virginia Supreme Court. Hoar’s family will first have to convince the Supreme Court to hear the case, which could be a six-month process, and if they are heard, will have to convince the Court to overturn the judge’s decision, an outcome that, based on precedent, is unlikely.
In the meantime, both Massanutten and the area’s insurance company, Acordia Resort Services, are breathing a sigh of relief. “The accident was extremely unfortunate and we hate to see this kind of thing happen,” said Scott Robinson, Acordia’s legal expert and head claims person, “But the verdict given by the jury was one of the highest ever awarded against a ski area and it was also plain wrong to award any money without proving any negligence.”
