At this writing, 13 states have enacted legislation which relates to skier’s and/or area operator’s responsibilities, duties, powers and privileges. Of these 13, eight have legislated comprehensive acts. The remaining five integrate fragments of comparable legislation in other statutory schemes: Vermont has simply codified the inherent danger test of Wright; Maine requires skiers to assume risks of falls and collisions, but not injury while on a lift; California prohibits skiers to leave the scene of an accident; and Wyoming prohibits skiing out of bounds.
In 1962, Michigan adopted the first ski law. The Michigan law concerns itself primarily with the operation of lifts, lift inspection and issuing permits to ski lifts. The statute reflects the public concern in Michigan which followed a serious lift accident.
The cases discussed earlier in this article would probably provide the foundation for any legal decision in a ski case in Michigan.
The Idaho Responsibilities and Liabilities of Skiers and Ski Area Operators Act requires that skiers in Idaho assume inherent risks which are delineated by the statute. The area operator’s duty regarding lifts is defined by reference to the American National Standards Safety Institute’s requirements for aerial tramways.
In Massachusetts, the ski area operator is under an affirmative obligation to mark the location of hydrants and snowmaking equipment, to mark and identify trail maintenance and emergency vehicles with flashing or rotating lights and to post notices at the head of any trails or slopes on which maintenance or snowmaking equipment is being used. As in the other states with comprehensive acts, Massachusetts ski patrollers should be aware of the law particularly with regard to the marking and signing requirements.
Massachusetts adopts the statutory law that a skier has the duty of avoiding the accident with any person or object on the hill below. “The responsibility for collisions by any skier with any other skier or persons shall be solely that of the skier or person involved.”
A Massachusetts ski area operator, or his or her volunteer patrol, may issue a warning to any individual skier who does not have runaway straps. A skier in Massachusetts who fails to heed the oral warning may have his ticket pulled. The statute does not provide any remedy for a skier who does not receive the benefit of an oral warning, but simply has his ticket pulled for lack of runaway straps.
The Ski Act of New Mexico makes it illegal to operate a lift without adequate insurance. The New Mexico legislature is apparently concerned that a tragic lift accident may occur and that the area may not be adequately insured to cover the injuries sustained in such an accident. Additionally, New Mexico specifically requires that ski area operators provide: “ski patrol personnel, trained in first aid which training meets the requirements of the American Red Cross, advanced first aid course and also trained in Winter rescue, toboggan handling, to serve the anticipated number of injured skiers and to provide personnel trained for the evacuation of passengers from stalled aerial ski lifts. A first aid room or building shall be provided with adequate first aid supplies and properly equipped rescue toboggan shall be made available at all reasonable times at the tops of ski slopes and trials to transport injured skiers from the ski slopes and trails to the first aid room.”
The New Mexico law also provides that “any skier upon being injured shall indicate, to the ski patrol personnel offering first aid treatment or emergency removal to the first aid room, his acceptance or rejection of such services as provided by the ski area operator.” This means that the New Mexico ski patroller must ask an individual whether or not he or she wants treatment or first aid. “If such service is not refused or if the skier is unable to indicate his acceptance or rejection of such service the acceptance of such services is presumed to be accepted by the skier.” The Act then provides “such acceptance shall not constitute a waiver of any action or negligent provision of the service by the ski patrol personnel.” New Mexico, it seems, takes the position that the ski area operator must provide ski patrol assistance and therefore a duty rests upon the New Mexico ski patroller to attempt to rescue skiers at the area.
New Mexico has a unique law called the “Search and Rescue Act” which creates a local official in charge of rescue for the state. His/her job is to coordinate rescues with the Civil Air Patrol and other agencies.
Under the New Hampshire law, skiers assume risks while alpine or nordic skiing. Operators must mark the relative difficulty of each trail, but do not have to pad or mark obstacles. Skiers are, pragmatically, unable to sue an operator for any injury due to a fall or collision. As in New Mexico, lift operators have significant exposure and must be insured.
The ski patroller in New Hampshire must have a working knowledge of the color code and signing systems set forth in the New Hampshire Act. There are no provisions in the New Hampshire law regarding the duties of volunteer patrol persons or the obligation to rescue.
In the Washington Skiing and Commercial Activity Act, the words “inherent risk” again appear. Lift operators must be insured, but skiers may sue for the “negligence of the operator” even if an injury is lift- or skiing-related.
The Washington legislature has decided not to require ski area operators to have a patrol present. Nor does the Washington statute make any provision regarding the offering of care by ski patrol people. Washington does require a skier involved in an accident to “leave personal identification and to notify the proper authorities.”
“Proper authorities,’ presumably means ski patrol.
In 1980, Utah enacted a law specifically designed to alleviate the “confusion as to whether a skier assumes the risks inherent in the sport of skiing.” The Utah bill was enacted due to the increase in insurance premiums. The act provides no skier may claim against or recover from any ski area operator for injury resulting from the “inherent risks of skiing.” The law provides that “inherent risks of skiing mean dangerous or other conditions which are an integral part of the sport of skiing including, but not limited to: changing weather conditions; variations in steepness and terrain; snow or ice conditions; surface or sub-surface conditions such as bare spots, forest growth, rocks, stumps, impact with lift towers and other structures and their components; collisions with other skiers and a skiers’ failure to ski within his own ability.”
The law makes no provision regarding ski patrollers or rescue.
Colorado’s Ski Safety Act of 1979
The Colorado statute segregates the duties of area operator from skiers duties. Lift signs give specific warnings. Lifts must be certified by the Passenger Tramway Safety Board of Colorado. Deviation from the standards set forth by the Board constitutes actionable negligence if an injury results from failure to comply.
Compliance is the watchword on the hill. Specific signs must be in place regarding the difficulty of the slope, whether snowcats or maintenance equipment is operating and marking boundaries or closed trails. Certain objects must be flagged or marked.
The Colorado Ski Safety Act also creates three petty offenses: skiing under the influence, leaving the scene of an accident and skiing on a closed trail or beyond the area boundary.
A section of the Colorado law provides “the ski area operator shall have no duty arising out of its status as a ski area operator to any skier skiing beyond the area boundaries.” This section imposes no duty upon an area operator to rescue a skier beyond the area boundary. However, it is unclear whether this section absolves the area operator from rescuing an injured skier it knows is beyond the area boundary. This section poses a more difficult question with regard to the skier who is merely on a closed trail rather than beyond the area boundary.
Prior to approval, this section was written to require skiers in need of assistance on either a closed trail or beyond the area boundary to pay for the cost of any rescue efforts. The General Assembly rejected this in favor of the “non-duty” approach. It is possible that if a skier is out of bounds, through no fault of the area operator, and is injured, the operator does not have to act at all. This frightening proposition leaves one with visions of the struggling skier dying of exposure and ignored by capable, well equipped patrollers who feel no need to cross a boundary marker to assist a desperate citizen. Hopefully, the “non-duty” provision of the Ski Act will be interpreted to impose upon the operator a duty to rescue skiers it knows are in trouble and to whom the area operator is able to send assistance.
Know the State Law
What is a ski patrol person to do when he or she sees a flagrant violation of their state statute? Is the ski patroller in a position to arrest the offender? If so, is the ski patroller liable for violating the constitutional rights of the offender in the event the offender is freed? Do you have to give “Miranda warnings” on the ski slopes?
There are no easy answers to these questions. There have been no precedents set.
Ski patrollers should be aware that an arrest does not involve any formal act or magic words. When a ski patroller stops a skier, the problem cannot be avoided by ordering a skier who has committed an offense to the bottom of the hill. Nor can the problem be avoided by asking the skier to ski with the patroller to base in order to be arrested by a sheriff who has been called by walkie-talkie. Most courts would construe the act of stopping the skier and then requiring the skier to the bottom of the hill an arrest in and of itself. One technique which works well is to take one pole away from the offender. This reduces the offender’s mobility and it also gives the offending skier a vested interest in staying with the ski patroller.
We finally come full circle to the issue of the duty to rescue. We have learned that, at least implicitly, some states consider a ski area operator, or a patroller, obliged to rescue individuals skiing at the area. Ski patrollers must have a working knowledge of their state’s ski law, to resolve individual problems. I am confident the spirit and elan of ski patrollers worldwide, will probably cause rescues to be effected if at all possible, regardless of any legal duties or obligations.
The best preventive action which patrollers and area operators should take is to have a working knowledge of their State’s law. Additionally, the area should be inspected, perhaps by the area operator’s lawyers, for compliance with any sign, marker boundary or equipment codes. lf these steps are taken, we can meet the objective of all concerned. Injuries and deaths can be reduced while the cost of insurance and, consequently of lift passes, can be controlled.
