“The Future of Skiing”
The scene was without precedent: a joint meeting of the SIA and NSAA boards of directors—the ultimate clout of the commercial ski world. And they were assembled in Washington, D.C., the source, many feel, of many of their problems, as well as the focal point for the easing of these problems. But we are getting ahead of ourselves.
For the past year, a committee has been at work on some big-think approaches to the future of skiing. Modestly called “The ASF Ad Hoc Committee,” it was born at Ski Magazine’s “Industry Week” promotion at Vail in December, 1976, and was chaired by Ski’s John Fry. (For those who get lost in alphabet soup, ASF stands for American Ski Federation, which is a loose association of the leaders of the top ski world organizations, such as Ski Industries America and National Ski Areas Association on the commercial side, and the U.S. Ski Association and National Ski Patrol System on the non-commercial side.)
Essentially, the Ad Hoc Committee came into being because of a recognition that the ski sport and ski business were being suffocated by a variety of problems, and that the fragmented state of the ski world stood in the way of any effective, unified solutions being framed for these problems.
The Ad Hoc Committee set itself the task, not of providing solutions, but of studying the nature of the problems and seeking the nature of the solutions. The services of Garry Mitchell (president of Colorado Ski Country U.S.A.) were contracted for to pull together a report—an “agenda for action”—and it was this report which was presented to the combined SIA/NSAA boards in Washington.
O.K., but what does all that mean? A fair question.
In its simplest terms, it means that a number of sociological forces have been at work in North America over the past decade which have made—and continue to make—a profound impact on the ski industry, and on the skier himself. At least five of these forces are readily identifiable.
First, environmental awareness has been a major factor in slowing ski area growth to a barely perceptible crawl. In its most obvious form there is the successful (so far) blocking of Mineral King by the Sierra Club. This is the showcase of how to use the courts—subvert might be a better word—to the ends of a determined few. But there are literally dozens of less celebrated examples. And, in truth, growth constraints today are less a matter of court-room grandstanding than they are of state and federal regulations being applied under existing law. And thus a second broad socio/political trend is the ever-increasing intrusion upon the business sector by regulatory agencies.
Still another trend that is making itself felt in our world is the litigiousness of our whole society. Our state legislatures are dominated by trial lawyers, whose financial well-being is built on their ability to push back the boundaries of tort law.
(Most of the ski world’s problems are in the tort area—a tort being a wrongful act which results in injury to another’s person, or to his property or to his reputation, and for which the injured party is entitled to compensation.)
We all know what has been happening to insurance premiums, and these are nothing more than a mathematical reflection of the awards which are being made, and these in turn reflect society’s values—or lack thereof.
A fourth impact on us comes from the energy problem. The ski world’s vulnerability to any future energy crisis is something that overhangs us all. The nature of any national energy policy, and the allocation priorities that will be a part of that policy, are of immense significance to skier and ski businessman alike.
A fifth trend is a national economic one that affects the ski world as it does all business: inflation. Delicately referred to as “public perception of the cost of skiing,” the problem right now may be more a projection of our feelings of insecurity than it is a real consumer resistance to prices.
Now, these are big, hard-to-grapple-with problems. They are impossible for a single ski resort to solve; they are hard even for a ski area association to cope with. And this is where the new shape of problem-solving for the ski world is being designed.
Ultimately, the problem-solving must be political, and in the exercising of political pressure, the key ingredient is public opinion. But how is the skier voice going to be heard in the halls of Congress and in the corridors of the state legislatures? Ours is but one small group among so many special interests, all clamoring to be heard.
Perhaps the simplest way of answering this, and of describing the objectives of the Ad Hoc Committee (which has now been catalytically converted into the formidable-sounding “Future of Skiing Committee of the American Ski Foundation”) is to evoke the National Rifle Association. No matter what one’s personal opinion is of this organization and its purposes, nobody disagrees on its effectiveness. To the extent that all hunters are united on a few basic points, then all hunters are extremely forcefully represented by NRA at every legislative and every public relations pressure point. The NRA may be sometimes branded as “reactionary,” “fascist,” “assassination lobbyists” and so forth, but as far as the hunting public is concerned, the organization keeps the gun control lobby at bay with little apparent effort, despite the advocacy of very powerful and popular political leaders like Ted Kennedy, and despite a large and vocal segment of the national press.
In fact, though, the success of the NRA is not effortless. It only looks easy because the lobbying machinery is so well oiled with professionalism, and so well fueled with funds.
Sensitive to image, the ski movement would rather not be modeled publicly on the NRA. But nobody minds a little quiet copying, and certainly, as an objective, it is appropriate to say that the Future of Skiing Committee would like to see its programs develop to an effectiveness that equals NRA’s.
How to create this effectiveness? The original Ad Hoc Committee stressed the need for four areas of effective communications: 1) communications between all elements of the ski industry, 2) communications with the skiing public; 3) communications with the public at large; and 4) specialized capabilities for communicating with appointed and elected officials.
Fundamental to any effort would be skier involvement. The united front would not only have to give the appearance of being in support of, and supported by, the millions of active skiers; it would actually have to give and get that support. A tough order when the only skier organization around was the inept, powerless, voiceless, toothless, albeit well-intentioned relic, the U.S. Ski Association.
But, providentially, it seems that new leadership and new thinking was in the works at USSA. Bold new concepts were being considered, the most important being that USSA’s principal role in the future should be as the “national skier advocate.”
A brief word of instant — and admittedly unfair — ski history is needed here. The National Ski Association was founded in 1904, and changed its name in mid-century to U.S. Ski Association. Its principal function was to provide overall organization for the running of ski competitions, and this involved the sanctioning of events and the representation of U.S. interest in international competition councils. Its other principal function, at least to this observer of the past 28 years, has been to engage in the most complex, esoteric internal political maneuverings of any organization known since third century Byzantium. The rewards for the successful practice of this arcane art were to go up the regional, and then the national, elective ladders in order to preside over a politically moribund and financially enfeebled organization. Surprisingly, there has never been a lack of attractive volunteers to seek these dubious honors.
Despite good intentions, virtually nothing was done by USSA for the individual skier because nobody could agree on what should be done. So, few skiers joined, and those who did were either amateur racers who had to, or were people — not necessarily skiers — looking for a charter to Europe.
There was no effective relationship between USSA or its divisions and the ski areas except the seedy one of peddling lift ticket discount programs as membership benefits. A few years ago the crowning blow came when the USSA essentially lost control over its ultimate goodie, the U.S. Ski Team. Since then, the most compelling work for USSA would seem to have been the overseeing of the National Ski Hall of Fame.
But now it is time for this writer and an understandably cynical ski area industry to adjust to a new and exciting USSA. The 1978 convention gave the directors a mandate to reorganize the association, and this is well underway. The result will probably be a strong, central organization geared to a new role as skier advocate. (See the Issues piece on the subject.)
At this point, the ultimate design for the “Future of Skiing” committee comes into focus. Assuming the successful re-birth of USSA as the “voice of the U.S. skier,” as NRA claims to be of the hunter, a national lobbying effort can be conceived — one that would have a chance to be effective.
It is possible to visualize a central, perhaps Washington-based, core action group working for the benefit of skier and ski businessman alike in support of skier positions on major issues. Large lists of active skiers could be kept in computer-retrievable form. Computers would keep track of every legislative hearing affecting the ski world in every state, as well as on the national level. When a hearing was coming up, say in the Oregon legislature, on a ski-related bill, the computer would select skiers who would be asked to write to key legislators in support of the skier position. Ski business people — ski retailers, manufacturers, area operators — would be asked to lend their support, and some of them perhaps to testify. A communications effort would be made to reach the general public with the skier position. No opportunity would be lost for educating the general public on the positive aspects of the sport and on the positive aspects of responsible ski area development.
The funding for all of this type of sophisticated ski world advocacy would have to be considerable and steady. The commercial ski interests will have to provide financial muscle, and to this end it is encouraging to find that SIA has already authorized substantial seed money. In addition, the dues structure of the new U.S. Ski Association will have to be productive of lobbying dollars. (As an example, a $15 membership from 100,000 members could probably yield a million dollars for lobbying efforts after its own expenses and membership benefits are met.)
All of this thinking is not without its opponents. When Garry Mitchell gave his report to the NSAA board there was a split right down the middle, and there is a body of opinion that is concerned over the “creation of a monster” that couldn’t be controlled, once launched. However, the momentum towards the creation of a unified ski world lobby would seem to be strong, and the betting here is that the further studies being made now will result in some major accomplishments this spring.
We have presented the above, not as a definitive report on the state of deliberations to which we are not privy, but as background, as best we can, for our readership. We very much hope that all concerned will soon decide to bring everything out into the sunlight where our whole industry can see what is being proposed. The Mitchell report is quoted as expressing the hope that the “suggested agenda for action” he provided “will generate significant discussion and a comprehensive review of the industry’s challenges and opportunities so that the final report will be enthusiastically received and implemented.” We agree, and suggest that much more information must be given to ski areas — and soon — if “significant discussion” is to be generated.
The National Rifle Association yardstick has been lurking in the back eddies of the ski world for years. Indeed, if memory serves, NSAA featured an NRA executive as a speaker a few years back. The thinking may not necessarily be all new, but that doesn’t make it any the less compelling. What is new is the timing, and today’s need for a national advocacy for the ski world. The time is ripe, and we urge our readers to follow events closely and participate in forming the eventual ski world consensus.
A SAM editorial
Sunday v. Stratton (continued)
What a strange turn of events! Young quadraplegic named Jim Sunday awarded $1.5 million in damages in suit over ski accident. Judge throws ski industry into a tizzy with his rulings on assumption of risk. Defense appeals the verdict. Gloomy and dire predictions of $30 lift tickets. One Vermont ski area announces his area will close this winter rather than pay higher liability insurance premiums.
. . . and then, suddenly, in an “act of conscience,” a doctor allegedly comes forward with new information. Stratton’s defense attorney, Donald Hackel, files an affidavit claiming that he has been informed that young Sunday allegedly told therapists “that he was ‘drunk’ at the time of the accident, that he was on a trail where he was not supposed to be, and that he did not contact any brush on the trail.”
At this point it looks for all the world like one of those last-minute legal rabbits-out-of-the-hat that Paul used to whisper into Perry Mason’s ear that brought him legal victory in the last five minutes of the show. For, surely this new and startling evidence would somehow be heard.
But no, it was not to be. Hackel filed a motion in the Vermont Supreme Court to have the case remanded back to the trial court, citing the new evidence as the justification. There is a traditional and understandable reluctance to allow cases to be re-opened. The evidence has to be of a very compelling and significant nature, and the petitioner must be able to demonstrate that there was no way in which this evidence might have been dug up and produced in time for the trial through energetic effort.
Hackel was turned down—to the suprise, it must be added, of most informed observers who thought he had a pretty strong case for remanding. But now the new evidence remains permanently bottled up, and it is a pity. If perjury was committed in getting a $1.5 million award it would seem reasonable and just to bring it out into the open.
What next? The case is back to status quo ante as an award that is being appealed. Stratton and the Vermont Ski Areas Association are hopeful they will succeed on the appeal. At presstime there were indications that it might be heard much earlier than the previously predicted June date. In fact, it looked more like February.
The important thing, though, is that no matter what happens now, the Sunday v. Stratton case will still mark a turning point in how ski areas attempt to avoid costly litigation. The blow that Judge Underwood delivered to Wright v. Mansfield and its doctrine of assumed risk will not be undone. Our industry has already changed, and is building new and better grounds for today’s legal defense. We are seeking, and in some states achieving, legislative relief. A positive skier education program is under way and slated for further development.
This is all to the good, and the impetus behind all of this must be kept strong. A Sunday v. Stratton that is (perhaps) pulled out of the fire by default is no reason for us to let up on our industry efforts to protect ourselves.
There is no reason to believe that the upward trend in increased insurance costs has ceased; but the professional and sure-footed response by our industry gives reason to hope that we may be getting some measure of control over our insurance destinies. Also, the major underwriters have remained staunch and steady.
We think there is room for that emotion that diplomats occasionally allow themselves when the going is tough: cautious optimism.
A SAM editorial
Litigation threat in perspective
The following was written before the new developments occurred in the Sunday v. Stratton case. The author, a prominent Colorado attorney, has tried nearly 40 ski cases on behalf of Commercial Union, insurance carrier for many Colorado areas
The rumor that the ski industry is dead has been slightly exaggerated. Sunday v. Strattom is quite a shock, but it can serve to put things into perspective and in that sense may be a sort of blessing.
How important is assumption of risk? In most states the Stratton case has very little impact as a precedent. In Colorado, for example, the legal doctrine of assumption of risk has never been of much help in ski cases simply because that doctrine has always been interpreted so narrowly. In having tried nearly 40 ski cases since 1964 I have succeeded in having the Court instruct the jury on assumption of risk exactly twice. For the doctrine to apply, the skier must have been aware of the precise risk that caused the injury, not just that skiing is generally hazardous or that there might be some unmarked hazards somewhere. The overwhelming majority of defense verdicts have been achieved by convincing judges on the basis of legal doctrines.
The real value of assumption of risk is not as a legal doctrine, but simply as a general awareness on the part of the average juror that skiing is a hazardous sport. Jurors have often told me after deciding the case that the plaintiff surely knew that he could be injured and thus accepted that risk. If this attitude is now changing, Sunday v. Stratton is merely a reflection of it and not the cause.
Changing attitudes. The causes of changing attitudes are twofold. One is very clearly spelled out in the Stratton case. When the ski area operators go to great lengths to convince the public that their runs are perfectly groomed and the sport is as safe as a hot game of chess the public cannot be blamed for taking them at face value. A plaintiff’s lawyer can use such advertising to great effect at a jury trial.
The second cause for changing attitudes has to do with the general shift of emphasis toward the consumer and away from the old adage, “Let the buyer beware.” This change is not limited to the ski industry but is one that permeates our society. David Rowan is absolutely correct when he says our society is caught up in a “litigious binge.”
Countermeasures. The ski area manager would rather devote his time to making his area safer than to protecting himself legally. To him, erecting a lot of signs which most skiers will probably ignore seems a waste of effort. But we may as well recognize that in our society we often do things for no other reason than to protect ourselves legally. Warning signs are important, too, for the defense lawyer. Even if they don’t cut the accident rate, they certainly can cut the litigation rate. And they can go far in correcting the impression that skiing is perfectly safe.
Lift towers and lift lines provide an exceptional means of reaching a captive audience. The ski area misses a golden opportunity by not giving the skier, by way of signs at such locations, the following messages:
- Despite our best efforts we do not guarantee that all hazards have been removed or marked.
- The skier must be alert for unmarked obstacles and changing conditions.
- Unless he has been told otherwise, the lift operator will assume the passenger is familiar with the lift and has the ability to ride it.
- If you miss the unloading point stay on the lift. Do not jump off.
- Check bindings for proper release function.
- Ski in control. An out-of-control skier is a hazard to others.
- Watch for out-of-control skiers. Though the patrol will take the lift tickets of persons skiing recklessly, any skier may momentarily lose control and become a hazard to others.
- Watch for snow grooming equipment. Snow cat operators may have restricted visibility. You can see them more easily than they can see you.
- The usual messages about keeping tips up, checking for loose clothing, preparing to unload, etc.
Most ski areas have some signs dealing with some of the above subjects somewhere on the mountain. But amazingly enough injured plaintiffs almost never admit to having seen any of them. I suggest that every lift have signs dealing with each of the above points, that every posted trail map make the same points and that every sign marking the beginning of a trail (especially the “more difficult” and “most difficult” ones) include a warning about unmarked obstacles.
Finally, make some effort to educate the patrol, ski instructors and rental shop personnel about the hazards of litigation. Only a tiny percentage of accidents results in lawsuits but an alert patroller can often smell such a suit coming. The patrol should know that although most injuries occur on the open slope, most lawsuits concern getting on or off the lifts or involve some man-made device such as snow cats, posts, fences, etc. If the injury is serious or someone at the scene is blaming the ski area, have a patroller photograph the general vicinity and any applicable warning signs. Remember that a photo taken weeks later by an insurance adjuster may not be admissible evidence due to changed conditions. The photos should depict (as applicable) the normalcy of the loading or unloading ramp or the visibility of an object from the direction of the skier’s approach. If the skier is blaming his rented bindings for failure to release note the settings on such bindings.
I know that a lawyer’s advice is often a pain in the neck to the manager, who would much rather devote his efforts to making things run better. But the problems raised by Sunday v. Stratton are very practical ones. The fact is that proper signing and other defensive measures will go a long way toward protecting the ski area legally.
And who knows? Maybe a few skiers will actually read those signs.
Richard C. McLean
Denver, Colorado
