When a skier gets hurt, whose fault is it?
When a skier gets hurt, whose fault is it?
Utah Supreme Court will weigh a lawsuit against Snowbird
By Pamela Manson
and Mike Gorrell
The Salt Lake Tribune
When William Rothstein slammed against a retaining wall off the Fluffy Bunny cat-track at Snowbird Ski & Summer Resort in Little Cottonwood Canyon, he slid into a legal controversy that could affect recreational activities in Utah.
Rothstein's lawsuit challenging the validity of waivers that relieve Snowbird from liability for his injuries has made its way to the Utah Supreme Court, which is scheduled to hear the case today.
A decision voiding those agreements could allow injured patrons to sue over alleged negligence by ski resorts.
Snowbird's lawyers say permitting those lawsuits would hit the state's tourism industry with higher insurance premiums and drive some resorts out of business.
Lawmakers passed the Utah Inherent Risk of Skiing Act barring injury suits to avoid a flood of litigation, according to Kevin Simon of Park City-based Strachan, Strachan & Simon, the firm representing Snowbird.
"It's important to the ski industry and to potentially all recreational providers in the state of Utah," he contends.
But Rothstein said the releases he signed for a season of skiing are unenforceable.
His attorney, Jesse Trentadue, wrote in a court brief that the Legislature "intended that skiers would assume risks inherent in the sport of skiing, but did not intend to preclude skiers from bringing an action based on the ski area operator's negligence."
Rothstein was skiing on Feb. 3, 2003, when he ran into a man-made retaining wall constructed with mine timber cribbings.
The 50-year-old expert skier suffered 12 broken ribs, a decimated right kidney, bruised heart, damaged liver and collapsed lung.
He filed a negligence suit against Snowbird, claiming the wall was covered with snow and unmarked.
The resort, which denies any fault, said Rothstein skied off a cat track marked with a rope-line used as a warning to skiers. No other injuries have occurred in connection with the cribbings, according to Snowbird.
In January 2006, 3rd District Judge Anthony Quinn found in favor of the resort and dismissed the negligence claims. Rothstein appealed and the case went to the Supreme Court.
Trentadue said the states that promote the ski industry in much the same way as Utah - including Vermont and Colorado - have found liability releases to be void.
Courts in those states said the releases are not enforceable because they are ambiguous as to what hazards are included, he wrote.
Utah's releases also are unclear and say nothing about the risk posed by a snow-covered retaining wall constructed on a ski run, Trentadue alleges.
Snowbird counters that Utah requires only that the release state clearly and unequivocally that it covers negligence claims. Simon, the resort's attorney, said the "great majority" of jurisdictions enforce pre-injury liability releases in recreational activities.
He also points out that Rothstein could have skied on a day pass at Snowbird or purchased a season pass for Park City Mountain Resort without signing a release. Instead, Rothstein signed two releases when he bought two passes for the season, including one that entitled him to cut in front of other skiers in life lines for faster access to the slopes.
In any event, Rothstein was not under Snowbird's control, Simon wrote.
"Rothstein was not forced or corralled into the subject area and could have easily descended the mountain on other ski trails/runs," the lawyer wrote.
The Supreme Court's response to these arguments could apply only to this individual case or, as both Trentadue and Simon suggest, apply more broadly to Utah's $692 million-a-year ski industry and, by extension, to other forms of recreation-based commercial activity.
Ski industry officials are maintaining their distance.
Nathan Rafferty, president of Ski Utah, the industry's marketing arm, said he was aware of the case but declined to comment because he knew few details. Besides, "this is a single resort matter and we're not involved in that. If it were a legislative matter, we'd be there."
Similarly, National Ski Areas Association President Michael Berry said he knows nothing of the case. Even if he did, "as a matter of practice, we do not comment on cases that are being litigated."
Tracey Knutson, an Anchorage, Alaska, attorney specializing in recreational law, said she would be surprised if this dispute had widespread ramifications.
"This will probably be a fact-specific situation," Knutson said, applying only to Rothstein and Snowbird. "Be careful not to sound the alarm that all other recreational endeavors will be affected."
She also said, "In Utah, what your courts have said already is that [resorts] can use releases and the courts will uphold them if they are properly drafted," Knutson said. "In the case of season passholders or people who go to a ski area and participate in lessons or races, they sign a release or waiver.
The courts look at them as contracts. If written appropriately, they have effect."
Catherine Hansen-Stamp, who practices recreational law in Golden, Colo., said she was not well versed in Utah law, but "in most states, whether or not inherent risk laws exist, courts have continued to uphold releases of liability for negligence in the recreation/adventure and other contexts."
She also disputes Trentadue's contention that Colorado courts found releases to be void.
Brad Stanford, a Portland, Ore., attorney, said "most states recognize the validity of releases when recreational activities like skiing and snowboarding are involved . . .. A prevalent rationale is that recreational activities are voluntary. A person who does not want to be bound by a particular release may simply go elsewhere or choose not to participate."
Were the Utah Supreme Court to rule in Rothstein's favor, Stanford said, "that would definitely be a minority position."
