Fence 1
On February 2, 1994, Sam Skier and some friends were skiing at the Snowy Ski Area making their last run of the day on a green-circle trail. Approximately two-thirds of the way down the trail, Sam lost control and skied into a trailside fence. In that location, the trail cut across the fall line, and the fence marked a steep drop-off on the skiers’ right. The fence was an orange mesh net that was supported by 10- to 12-foot-tall steel H beams. One of the flat sides of the beams faced the trail and was covered with a foam pad approximately one inch thick. The beam with the pad was then surrounded by a piece of corrugated plastic pipe that acts as a protective sleeve. However, the top six to eight inches of the beam were not covered with the pad or plastic because this space was needed to string rope to support the fence. In addition, under normal snow and weather conditions, the top part of the beam was well above the snow surface.
A few weeks prior to the day of Sam’s accident, Snowy Ski Area experienced unusual snowfall, that is, lots of snow, and instead of the normal one to three feet of snow on the trails, there was more than five feet of snow. As a result, the top of the H beam was at waist height as was the top of the entire fence.
Sam suffered various facial fractures when his head impacted with the unprotected top part of the H beam. After hitting the beam, he flipped over the fence and went down the steep embankment, suffering a fractured thumb and various other injuries.
Sam’s attorney filed a lawsuit in Philadelphia against both the Snowy Ski Area and the National Ski Patrol (NSP). Snowy’s counsel got the case transferred to the Court of Rural County, Pa., and also prevailed on Sam’s counsel to dismiss the NSP. The dismissal of NSP was based primarily on the understanding between it and the National Ski Areas Association that individual patrollers at a ski area are under the authority of the ski area and not the NSP.
The case went to trial in Rural County in December 1998. The trial was bifurcated, so that the jury only considered issues of liability and not damages. Sam’s counsel called an expert witness who testified that the post should have been padded or should have been cantilevered so the fence would be suspended from it rather than right next to it. He further gave the opinion that the unpadded post presented a greater danger to the skier than the unguarded drop-off that would exist if there hadn’t been a fence there.
The trial judge didn’t allow members of the ski patrol to testify about the severity of accidents and injuries suffered by skiers who went down embankments that did not have any fences. Snowy did not call an outside expert, but instead presented the testimony of its principal owner and general manager who was the primary developer of the fence. He characterized the deep snow conditions at the time of the accident as unexpected and conceded that the pad/corrugated pipe combination was in an effort to decrease the possibility of injury.
The jury found that Snowy was negligent and that this negligence was a cause of the accident. It also found that Sam was negligent, but surprisingly found that Sam’s negligence was not a cause of the accident. The jury also found that Sam had not assumed any risk.
Snowy filed post-trial motions arguing that the trial judge made various legal errors during the trial. Its main argument was that the judge should have charged the jury that the Snowy Ski Area did not have a duty to warn or protect skiers from obvious and avoidable conditions of the ski area. Such a charge had been requested by Snowy’s counsel, but was refused by the trial judge. The case was settled before the trial judge ruled on Snowy’s motions.
Fence 2
On January 19, 1995, Michael Adolescent, age 10, was skiing for his second time ever at the Sunny Ski Area when he lost control on a beginners trail and skied or slid into an unpadded, four-by-four wooden fence post. He had taken a lesson two days earlier, but was skiing on his own in anticipation of taking another lesson. Michael suffered a serious femur fracture and incurred in excess of $25,000 in medical expenses.
Michael and his parents sued Sunny in the Federal Court in Scranton, Pa. They could sue in the Federal Court because there was diversity of citizenship because the plaintiffs were citizens of New Jersey and the Sunny Ski Area was a Pennsylvania corporation.
The case went to trial in May 1998. The trial was not bifurcated, so the jury heard all about the $25,000 in medical expenses and also heard that there was a claim that Michael suffered a leg-length discrepancy as a result of the accident. The jury also heard from a ski safety expert for the plaintiffs that the terrain of the ski slope was such that an out of control or fallen skier would unavoidably ski or slide into the fence post. For this and other reasons the expert gave the opinion that the post should have been padded.
As with the Snowy Ski Area case, Sunny Ski Area did not have a hired gun expert, but relied on the testimony of its then general manager to explain the realities of running a ski area. He challenged the plaintiffs’ attorney to show him a pad that is effective at the speeds being traveled by most skiers and brought up the subject of a possible false sense of security a skier might have if he or she thinks the pad will prevent injury.
On the issues of negligence and assumption of the risk, the jury had essentially the same questionnaire that was presented to the jury in the Snowy Ski Area case. However, after one hour of deliberations, the jury returned with a verdict that the Sunny Ski Area was not negligent and thus a judgment was entered in Sunny’s favor.
Analysis
One would think that young Michael Adolescent had a better chance of winning his case than Sam Skier. You would expect more sympathy for a 10-year-old boy than a 30-year-old businessman. You would also think that a completely unguarded fence at the bottom of a beginner area would raise more concern than a guarded fence along the side of a green-circle trail. Why then did the Federal Court jury find readily in favor of Sunny Ski Area whereas the Rural County jury found against Snowy Ski Area? Although this author does not know for sure, the following are his surmises:
1) The Federal Court judge charged that the Sunny Ski Area did not have a duty to warn or protect Michael Adolescent from obvious and avoidable conditions, and Sunny Ski Area’s counsel was able to argue that the fence in question was clearly obvious and avoidable based on photographs and common sense. This legal argument could not be made to the Rural County jury.
2) The Snowy Ski Area’s pole was steel and The Sunny Ski Area’s pole was wood. While in fact hitting a wood pole may hurt almost as much as hitting a steel pole, it simply sounded worse when Sam Skier’s counsel talked about the hard, cold steel than when Michael Adolescent’s counsel talked about the wooden post. It’s harder for defense counsel to argue that a steel post is just another tree along the edge of the trail.
3) Snowy Ski Area had undertaken the duty to provide some level of protection for skiers who might impact its H beams, but in this instance provided incomplete protection. It thus created for itself a standard of care that it arguably did not meet. Sunny Ski Area did not undertake any duty to protect its skiers from its fences, and thus only had to defend itself from the standard of care espoused by the plaintiff’s so called expert, a witness who did not make a very good impression on the jury.
From a ski area management perspective, the most important lesson to be learned from these cases is probably point 3. Steel posts are a reality of life and you can’t do much about how the judge will charge a jury. However, when you try to reduce the risks of skiing, your actions will be more defensible if you act in a consistent manner and monitor what you have done so that it arguably provides the same level of risk reduction on day 50 of the season as it did on day 1.
Hugh Emory is an attorney who practices law in Paoli, Pa. He has represented ski industry clients for over 20 years. The facts in the two cases above are based on two actual cases that went to trial in 1998. The names are fictitious.
