Winter 2005

In many states with significant ski and winter sports tourism, the resort industry has returned to state legislatures asking for additional immunity and special interest protection. In the 1970's and 80's, the ski industry pressed many state legislatures to pass prototypical "tort reform" legislation styled "Ski Safety" statutes. These statutes sought to reinstate the doctrine of primary assumption of risk which would eliminate the duty of the ski area operator to exercise reasonable care in the operation and maintenance of downhill skiing operations. The manner in which the doctrine was implemented involved the application of the rule of inherent danger, which would, by statute, include within the risks assumed by the snow rider (skier, snowboarder, tuber, or sledder) any of the dangers "inherent" in the activity.

The effect of the typical legislation was to shift onto the participant the price of the ski area operator's negligence, as well as the price of many hazards which the general public would agree were inherent in the activity. The policy decisions undertaken by the legislatures held that participants should not be allowed to recover damages for injuries sustained by the "inherent dangers" of skiing. The doctrine of "inherent dangers" would have only included those hazards which the resort operator could not eliminate in the exercise of "reasonable care." However, as the statutes were enacted, the inherent dangers would explicitly include many hazards which, using modern management techniques, operators could mitigate. These would include modern grooming, generally accepted signs, trail markings, hazard markings, removal of rocks, trees and bushes, accepted standards for opening/closing trails in view of conditions, visibility, and crowding. Modern ski area operations in connection with trail design, fencing, guarding and avalanche prevention, in the exercise of reasonable care, can reduce many hazards which legislative definitions would include within immunities.

In recent decades, ski resorts have become more sophisticated, both in their business acumen, and their recreational offerings. They market themselves not only as destinations for the downhill skier, but as full-family adventure centers. Resorts now offer a range of snow-bound activities that often includes skiing, snowboarding, sledding, tobogganing, and snowshoeing. In light of the new guests, and the new sports, the old laws look antiquated. Greater family involvement, together with technological advances in sports safety, have made many of the traditional "inherent" dangers on the slopes no longer acceptable — to families or the courts. Recognizing the limitations of skiing-specific ski statutes, industry heads are returning to the legislatures seeking broad protection from members of the public injured on their property, regardless of the activity involved.

Amendments to Colorado's Ski Safety Act in 2004, Colo. Rev. Stat. Ann. §§ 33-44-101 to -114, were arguably designed to legislatively over-rule several then existing precedents, by changing specific wording of the inherent danger definition, and doing away with the duty of ski area operators to mark "danger" areas. The amendments classified certain areas, using specifications as to steepness, as "extreme terrain," and within the "inherent risks." Colo. Rev. Stat. Ann. §§ 33-44-107(2)d, 33-44-103(3.1) to (3.5), as amended.

In statutory amendments signed into law in May 2005, Nevada expressly limited the rights of both skiers and snowboarders to recover from "snow recreation area" operators. Nev. Rev. Stat. Ann. §§ 455A.060 to 455A.190, as amended.

Georgia's relatively-new ski statute limits the rights of skiers, snowboarders, and all others making "a non-mechanical descent." Ga. Code Ann. §§ 43-43A-1 to 43-43A-8.

In New Hampshire, their highest court ruled that the state's ski safety act did not protect a resort from claims by a "ski tuber" injured by the resort's failure to supervise and instruct guests on use of their ski tube run. New Hampshire now has legislation pending to protect resorts and ski area operators from lawsuits arising from "skiing, snowboarding, snow tubing, and snowshoeing"; the new law also creates a commission to study additional "snowsports" that "may need to be included in the ski area exemption from liability." 2005 N.H. Laws 145 (H.B. 619).

Ohio Senate Bill 61 (2005) would add to their ski safety act "competitors, freestyle skiers, ski tubers, and anyone using the facilities of a ski area" [emphasis added].

One particularly troubling development concerns waivers signed by parents on behalf of children. As a condition of participation, a ski area operator or resort will often require that a waiver be signed which releases the ski resort from all liability, regardless of how much the resort is at fault. When the participant is a child, parents are made to sign these waivers on behalf of their children. In Cooper v. Aspen Skiing Company, 48 P.3d 1229 (Colo. 2002), the Colorado Supreme Court held that as a matter of public policy, parents could be made to not sign away law's protections of children. Harkening back to a case over 100 years old, the court said that courts "owe a duty to exercise a watchful and protecting care over a minor's interests, and not to permit his rights to be waived, prejudiced, or surrendered either by his own acts, or by the admissions and pleadings of those who act for him." Cooper at 1234, quoting from Seaton v. Tohill, 53 P. 170, 172 (Colo. App. 1898). In 2003, the Colorado General Assembly reversed the Cooper decision, expressly validating such parental waivers, saying that the holding in Cooper reflected neither the "intent of the general assembly or the public policy of [the] state." Colo. Rev. Stat. Ann. § 13-22-107, as added by Laws 2003, Ch. 262, § 1, eff. May 14, 2003.

Vermont's legislature is presently considering a similar parental waiver provision, as part of a bill that validates negligence waivers by all classes of snowsports participant. 2005 Vermont House Bill 315(SN).

Since 1997, the media, the resort community, consumer protection authorities, medical experts, and the skiing and snowboarding public have shown increased interest in helmet use on the slopes. In 1997, the American Medical Association recommended the use of helmets by children and adolescents while skiing or snowboarding. The U.S. Consumer Product Safety Commission's 1999 report "Skiing Helmets: An Evaluation of the Potential to Reduce Head Injury" concluded that 7,700 head injuries could be prevented or reduced in severity, and 11 fatalities avoided altogether, simply by helmet use. The Commission expressly recommended the use of helmets by children while engaged in skiing or snowboarding.

During the 1997-98 ski season, helmet use in Colorado (the nation's busiest ski state) was between 1-5%. In recent years, the national rate has risen to around 30%, with higher rates of use in the Northeast and West. Early criticism of helmets questioned their ability to prevent injury, impaired peripheral vision and blocked hearing and that helmets only offered low speed protection. The most aggressive, and consumer hostile argument was that helmet use increased high risk activity by giving false confidence to helmeted skiers. These complaints were based on urban legends, no empirical evidence, and were manufactured by paid experts covering for industry public relations concerns that families would hesitate to involve children in a helmeted activity. The most damning article specifically disproved the notion that high risk activity was encouraged by helmet use. Hagel, Pless, Goulet, Platt, Robitaille, "The Effect of Helmet use on Injury Severity and Crash Circumstances in Skiers and Snowboarders," Accid. Anal. Prev. 2005 Jan:37(1):103-8.

Head injury is the leading cause of death in skier/snowboarder fatalities.

There are two authoritative medical stories. The adult study is reported by: Levy, Hawkes, Hemminger, Knight, "An Analysis of Head Injuries among Skiers and Snowboarders." J Trauma. 2002 Oct;53(4):695-704. Levy reported:

Head injuries constitute only 5-15% of all injuries from ski and snowboard accidents, yet are the primary cause of serious disabling injuries and death. There are approximately 10 fatalities per year in Colorado from accidents on the ski slopes, and among the fatally injured that we have studied head injury was the cause of death in 87.5%; none were wearing helmets. In over 400 skiers and snowboarders with TBIs serious enough to warrant transfer and admission to our level I trauma center, only five were wearing helmets. All five patients had mild injuries and made full recoveries despite some very major mechanisms. Our most severely injured helmeted patient to date was a snowboarder who went off a 40 foot cliff and landed on his head, cracking his helmet in half. He sustained a severe concussion (or mild diffuse axonal injury) with loss of consciousness, but had a negative CT scan of the head. He did require inpatient rehabilitation, but ultimately has made a full recovery and is now attending college. All the rest of the helmeted skiers and snowboarders had mild concussions and negative CT scans. Among the unhelmeted only 69% had simple concussions with negative CT scans of the head. The rest had more severe injuries such as cerebral contusions, or subdural, epidural or intracerebral hematomas. Severe TBI, with coma and Glasgow Coma Scale (GCS) score of 3-8, occurred in 15% of the unhelmeted skiers and snowboarders with head injuries, and their overall mortality rate after admission to the hospital was 4%. Id. at pp. 4 - 5.

Among all ages, wearing a helmet in the years covered by Dr. Levy's study resulted in a 75 percent reduction in the risk of traumatic brain injury.

Convinced of the positive benefits of helmet use, Dr. Levy, with other donors and the St. Anthony's Health Foundation worked to make helmets more readily available to snowsports participants. The rate of helmet use among equipment renters rose to 33.5 % in 2001. Efforts targeting younger or new participants have been very successful. Where helmets were made available to ski school participants, the rate of helmet use rose past 80 percent. Anecdotal evidence from a similar effort by doctors in Vermont suggests that, where available to equipment renters, helmet use among children rose to 75 percent.

In an authoritative pediatric study, "Trends in Pediatric Skier and Snowboarder Injuries," (TCH 2004) Lori A. McBride, MD, Ken R. Winston, MD, and Robert E. Breeze, MD reported on 215 patients, including skiers and snowboarders. Head injuries comprised 59 of the 215 patients, or 27.4%. There were three deaths in the series. All three were unhelmeted female skiers who struck a fixed object. No severe head injuries were reported among the helmeted children admitted following a skiing/snowboarding accident.

Both the pediatric and the adult study have shown that helmets effectively reduce the incidence and severity of head injuries from skier accidents.

In 1998, the Snell Memorial Foundation established a national standard S-98, for Protective Headgear for Skiing and Other Winter Activities. www.smf.org/ The testing for the Snell standard is more rigorous than the ASTM standard, F2040-02 Standard Specification for Helmets Used for Recreational Snow Sports. www.astm.org

The most recent study was authored by Hagel, B., and published in Caine DJ, Maffulli N (eds): Epidemiology of Pediatric Sports Injuries. Individual Sports. Med Sport Sci. Basel, Karger, 2005, vol 48, pp 74-119 (DOI: 10.1159/000084284). The study clearly demonstrates the value and improved safety of skiing helmets for children.

1. Wear a helmet. Helmets have been proven to reduce or prevent head injuries.
2. Take a ski lesson. Those short fat skis may seem easier to turn and control, but if you take a lesson, you will ski better and more safely.
3. Carry some basic first aid and survival gear: a small first aid kit, space blanket, whistle, medications such as an inhaler if you are asthmatic, insulin if diabetic, etc. Bring your cell phone.
4. Carry a ski area map.
5. Maintain your equipment either yourself or professionally. Make sure your bindings are in the DIN recommended for you, and are clean and functioning.
6. Wear proper clothing and eyewear. Cotton jeans and sweatshirts are not good ideas. They absorb water and turn into refrigerants. At high altitude - a decent pair of polarized goggles or sunglasses are inexpensive and may save your eyesight.
7. At large ski areas, where there is a risk of getting lost, isolated, or in a spot where you won't be seen, don't ever ski alone, and never abandon a buddy.
8. Don't ski while listening to music on a headset.
9. Ski sober. Don't smoke dope, or drink booze when skiing.
10. Obey the NASA code of safety:


• Always stay in control, and be able to stop or avoid other people or objects.
• People ahead of you have the right of way. It is your responsibility to avoid them.
• You must not stop where you obstruct a trail, or are not visible from above.
• Whenever starting downhill or merging into a trail, look uphill and yield to others.
• Always use devices to help prevent runaway equipment.
• Observe all posted signs and warnings. Keep off closed trails and out of closed areas
• Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

If you see a ski area operator employee doing something which is unsafe, like driving a groomer uphill against skier traffic on an open slope - say something to the management of the ski area. They like to prevent accidents as well.

Colorado has once again enacted legislation granting special immunity to big business at the expense of protecting consumers. House Bill 1393, amending the Colorado "Ski Safety Act of 1979," was signed into law by Governor Owens on May 28, 2004.

• Includes freestyle terrain in ski area definitions and reforms rules to include new types of competition and skiing styles.
• Eliminates the duty to mark “danger areas” and defines unmarked cliffs and other unlisted things as part of the “inherent danger” of skiing.
• Redefines ski slopes and trails to include dangerous edges and features.
• Eliminates the duty to notify skiers of grooming equipment on the trails unless they are actually grooming.
• Includes all ski area property in the immunities of the Ski Safety Act, not just those areas used for skiing and competitions.

The bill has a laudable goal of helping the Ski Safety Act fit new styles of skiing, new kinds of equipment and new sorts of competition. Unfortunately, there are unwise “hitchhikers” in this bill:

• The bill does not distinguish between a nine year old skier and a 25 year old professional competitor in a highly dangerous competition. What’s a fair assumption of risk for the mature professional is simply grossly dangerous to a small child or even an ordinary recreational skier.
• Eliminating the requirement to mark dangers in the ski area and expanding immunity to cover non-skiing situations will make Colorado’s ski areas incredibly dangerous, since there will be no economic interest in assuring a safe skiing experience.
• Large pieces of grooming equipment are dangerous whether they are grooming or crossing a ski run and skiers should always be properly notified to watch for them. Just because equipment is “in transit” doesn’t mean a skier could not run into it without proper warning.

If you look at the amended language of 33-44-103(3.5) you will see that the deletion of the word "integral," can be read to mean that without exception, and without regard to "negligence," or "lack of care" by the ski area operator, that any injury, to man, woman or child, assumes every practical hazard of skiing. This new definition of "inherent danger," is a marked change from prior law, and can be read to immunize the ski area from absolutely any responsibility that they would previously undertake, whether in the safe operation of the snow groomer (lights and siren notwithstanding) and any conceivable unmarked natural hazard such as a cliff, an unmarked gully on an intermediate run, or an unmarked significant terrain change which typically would be marked as a danger area, or a hazard. No longer would it be arguable that the unique circumstances of a particular accident fell within the narrow exception that the hazard was not "integral" to skiing. There was a lot of talk today about the expert skiers, there was no talk about the children, and the elderly who make up a significant portion of the skiing population.

On one hand the ski areas can say that they will act with due care and not be "negligent" in marking obstacles, danger areas, closures, etc., and on the other hand that they are nonetheless immune as their negligence is taken as an "inherent danger."

To review the new law as signed, click here.