Terrain Park Liability Continues to Threaten Resorts

Transcription

1 Terrai Park Liability Cotiues to Threate Resorts could litigatio set the sowboard idustry back 20 years? BY BRAD FARMER oe day a lawsuit is brought agaist a resort for terrai park liability i a serious persoal ijury case. After years of trials ad appeals, the verdict ultimately goes agaist the resort. Millios of dollars have to be doled out to the victim, ad oce paymet is made the resort s isurace compay promptly threates to drop its coverage uless the resort agrees to stop buildig terrai parks. Due to the ew precedet that the verdict set ad the flood of additioal lawsuits that follow the judgmet, the exclusio of terrai parks from coverage ripples throughout the isurace idustry. Resorts are forced to sed their crews out to plow dow their parks ad put ice flat groomers where jumps ad halfpipes oce stood. Ca you imagie the impact that would have o the sowboard idustry? Resorts, retailers, maufacturers, ad everyoe ivolved i the busiess of sowboardig would immediately have their livelihoods seriously threateed. Does this sceario seem impossible to you? Well, it may have arrowly avoided becomig a reality. The case quickly tured ito a ightmare for the resort idustry whe Vas ad Switch were amed i the lawsuit for product liability. 38 SEPTEMBER 2006

2 The Trial I 2002, a egligece lawsuit i Vie vs. Bear Valley wet to trial after summary judgmet was deied. The plaitiff was seekig damages i the eighborhood of $18 millio. Charlee Vie suffered a broke back at the T-12 vertebral area, resultig i paraplegia, whe she fell while attemptig a jump at a employee party hosted by Bear Valley Moutai Resort after the ed of the seaso. A Bear Valley employee had reshaped ad groomed the jump specifically for the party. It s difficult to put yourself i the place of someoe who has become paralyzed i a sowboardig accidet. You made the choice that led to your life beig tragically altered. Deep dow, you may kow it was your ow fault, but whe a persoal ijury lawyer tells you that you have a case ad could collect millios of dollars i damages, what would you do? Vie s lawsuit was based o the claim that the jump was dagerous ad icreased the risks to sowboarders beyod those iheret i the sport. The case quickly tured ito a ightmare for the resort idustry whe Vas ad Switch were amed i the lawsuit for product liability with a claim that Vie s bidigs failed to release upo impact. As we all kow, bidigs are ot supposed to release upo impact, but the ridiculous claim helped the plaitiff wi a chage of veue from Alpie Couty to Sa Fracisco Couty. The problem with the chage of veue is that Sa Fracisco is kow for beig very liberal with egligece case awards, ad a jury draw from a urba area would most likely be made up of people ufamiliar with sowboardig ad terrai parks. We suspected that if a plaitiff attorey was ever successful i arguig for a chage of veue out of the moutai commuity, it would ot be good for the resort idustry, said Joh Rice, expert witess for Bear Valley. Accordig to Peter Koeig, defese attorey for Bear Valley, presidig Judge Paul Alvarado deied all the typical argumets at trial, icludig: Primary ad secodary assumptio of risk The ope ad obvious coditio of terrai A release of liability siged by Vie The exclusive remedy workers compesatio Koeig wet o to explai the plaitiff s attorey Mike Dako took a Occupatioal Safety ad Health Admiistratio (OSHA) stadard that states; a fall from a ladder from eight feet ca be dagerous ad applied it to this case. This argumet of tryig to put scietific stadards to features made out of sow seemed ludicrous. However, it was successfully used to prove to the jury that there was egligece o the part of Bear Valley for costructig a jump that could cause someoe to impact the groud from a equivalet fall height of 12 feet (the height of the jump i questio). I additio to the aforemetioed typical defese argumets, ad several expert witesses who testified that the jump was built properly, there was a videotape of 31 sowboarders successfully makig it over the same jump that Vie did t. The video was deemed admissible i court, but oly without the audio. Ultimately half of the defese s evidece was throw out by the very liberal judge, added Rice. Ultimately, half of the defese s evidece was throw out by the very liberal judge. Joh Rice, Expert Witess for Bear Valley

3 Vie vs. Bear Valley Timelie April 2000 April 2002 vie is ijured at ed of seaso employee party trial begis i sa fracisco couty The Verdict The jury awarded Vie $3,727,000 i special damages ad $713,000 i oecoomic damages. I what was a small victory for Bear Valley, the jury foud Vie to be 54.6 percet at fault reducig the award by that percetage. Vie motioed for a ew trial o the o-ecoomic damages. The trial court grated the motio, but ruled the judgmet could be affirmed if Bear Valley accepted a additur of early $5.3 millio. The judge basically tried to add millios i damages over the jury s award. Bear Valley rejected the additur ad appealed the judgmet ad the order for a ew trial. I 2004, the state appeals court i Sa Fracisco reversed the trial court rulig based primarily o fidig that the jurors were ot properly istructed o the assumptio of risk doctrie. The legal cocept states: people who egage i dagerous recreatioal activities ca reasoably assume that they could be ijured. Two cases i which the assumptio of risk protected the resort from liability iclude Kelly vs. Sierra-AtTahoe [see exhibit a] which, actually wet to trial before the doctrie was foud to be a effective defese, ad Harshma vs. Jackso Hole Resort [see exhibit a], which eded i summary judgmet citig the doctrie. The appeals court also foud that all of the iitial defeses that were deied i the trail court should have bee admissible. If you are goig to come after the resort idustry with litigatio, you d better be prepared. Tim White, Director of Educatio for the Natioal Ski Areas Associatio. 40 SEPTEMBER 2006 JUNE 2002 bear valley appeals trail court verdict MAY 2004 appeals court reverses trial court verdict FEbRUARY 2006 retrial begis i calaveras couty APRIL 2006 retrial jury reaches verdict Bear Moutai is oe of the atio s top raked terrai parks today. Locatio: Bear Moutai Photo: Courtesy of Bear

4 The Retrial If the resort idustry lost a big liability case, would Bear Moutai retur to the old days before the park? Most of the time you feel about goig ito a appeal, but i this case my cofidece was very high, said Koeig. He wet o to say that the appeals court did a great job of layig out a roadmap for the ew trial by statig precisely where errors were made i the first trial. The defese was also successful i arguig for favorable chage of veue to Calaveras Coutry, sightig reasos of coveiece i gettig witesses to court the locatio beig much closer to a majority of those ivolved. Accordig to Koeig, this helped the progressio of evidece go much smoother as witesses ad experts could be called ito court o much shorter otice. The veue chage also brought the trial back to the moutai commuity ad a jury pool that would be more familiar with sowboardig. The ew trial set at the historic courthouse i Sa Adreas, Califoria, bega i February of After two moths of heated testimoy, the jury retured a verdict after just two days deliberatio. The jury foud i favor of Bear Valley by a margi of We were pleased with the verdict of the retrial ad felt somewhat vidicated. We also feel that as a idustry, we proved we have the resolve to stick it out. If you are goig to come after the resort idustry with litigatio you d better be prepared, said Tim White, director of educatio for the Natioal Ski Areas Associatio. After all the moey that wet ito presetig expert witesses ad tryig to prove scietific stadards, what it really came dow to was a jury watchig the videotape. They were able to sit dow together outside the courtroom without lawyers ad view it frame-by-frame. Despite the emotio of the case they were able to draw coclusios based o what they saw. Thirty miutes later, the jury came back with their decisio, said Koeig. Locatio: Bear Moutai Photo: Courtesy of Bear If we are ever forced to regulate the buildig of sow features with scietific stadards we might as well scrap the whole idea. Pete Koeig, Defese Attorey for Bear Valley Exhibit A Kelly vs. Sierra At Tahoe (1994): This was the first terrai park liability case to go to trial. The court foud i favor of Sierra-AtTahoe, citig the iheret risks of sowboardig. OTHER SIGNIFICANT TERRAIN PARK LIABILITY CASES Shukowski vs. Idiahead Resort (1996): The court determied a jump clearly marked as expert slope led to a assumptio of risk, ad the case was deied i summary judgmet. Radall vs. Mammoth Moutai (1997): The court determied that whe a resort fabricates o-obvious, atypical hazards o its rus, it has artificially icreased the risks to sowboarders over ad above those iheret to the sport. Solis vs. Kirkwood Resort (2001): The court foud ambiguity i a liability release, which made the legality of the form questioable. Harshma vs. Jackso Hole Resort (2002): The court determied sowboard jumpig was a iheret risk of the sport, ad the case was deied i summary judgmet. Lae vs. Homewood Resort (2002): The court foud that there could be recovery of workers compesatio where a employer had ecouraged a employee to participate i a compaysposored evet.

5 ASSUMPTION OF RISK: The legal cocept states people who egage i dagerous recreatioal activities ca reasoably assume that they could be ijured. Rider: Paavo Tikkae Locatio: Copper Moutai, Colorado Photo: Dave Lehl What Does It All Mea? Bear Valley wis the case ad everythig is just fie ow, right? Well, ot ecessarily. What we ow have is a ew battle of sciece versus art. The plaitiff s attoreys were successful i questioig the desig of a jump costructed out of sow with use of sciece. If we are ever forced to regulate the buildig of sow features with scietific stadards we might as well scrap the whole idea, said Koeig. Let s face it; buildig terrai parks is more of a art form tha architecture, as sow is a malleable substace that will ever be cosistet i shape. Accordig to Koeig, despite the victory for Bear Valley, the sciece argumet is out there ow ad could someday prove damagig. There is always the risk that someoe will have a serious or fatal accidet o a terrai feature ad there is othig perfect about the resort idustry. Despite the growig experiece ad expertise there are likely still resorts out there puttig forth meager efforts i their terrai park desig ad maiteace. There has bee a geeral maturig of people who are buildig terrai parks, said White. The larger resorts seem to have it together ow, but it is difficult to keep track of what is happeig at the hudreds 42 SEPTEMBER 2006 of small resorts across the coutry. Perhaps i the ext terrai park liability case, sciece will prove egligece i desig. The importat issue right ow is that, thus far, a resort has ot bee foud liable, said Rice. How the Resort Idustry is Protectig Itself The Vie case raised awareess i ski resort ad recreatio commuity as a whole, stated Koeig. Somewhere aroud the year 2000, the resort idustry accepted the fact that sowboarders were here to stay ad quality terrai parks were actually somethig their customers ow demaded, ad, if doe right, could lead to icreases i visitors ad dollars. They also recogized the importace of protectig their ew iterests. We put forth some serious efforts to limit future terrai park liability, stated White. The Natioal Ski Areas Associatio took it upo themselves to brig idustry leaders together i a effort to make improvemets i three mai areas:

6 Exhibit B States that have updated statutes: Colorado dever hartford Coecticut Miesota (workig o it) New Hampshire West Virgiia Operatioal: Geeral improvemet i the cosistecy ad quality of terrai parks across the atio, which lead to a more ope sharig of iformatio. Legislative: A hadful of states were successful i updatig laws ad statutes pertaiig to Ski Safety Acts to iclude terrai parks makig it more difficult to sue resorts. (see exhibit b) Aother way resorts are workig to protect themselves is with the use of liability releases siged by guests. Most resorts ow require them from seaso pass holders ad idividuals participatig i evets. The ew Echo Moutai resort located i Colorado is primarily a terrai park ad ow requires all visitors to sig releases. Sow Summit, located i Souther Califoria, recetly istituted the CORE program where they offer a oe time $10 discout to guests who will sig a release. There has eve bee talk withi the resort idustry of attemptig to create a uiversal database of waivers. Liability releases are the last bastio of legal support for resorts, said Rice. Evet releases seem to hold up i court as see i the recet Summary Judgmet i Shepperd vs. Bear Valley (see exhibit a ). The ambiguity of a release was brought ito questio i Solis vs. Kirkwood (see exhibit a ). The effectiveess i court comes dow to the clarity of the release, said Koeig. cocord salt lake city Utah Educatio: Developmet of cosistet messages ad warigs to guests about terrai parks, which led to the creatio of Burto s Smart Style. (see exhibit c) mieapolis charlesto Exhibit C Burto s Smart Style Before # 01 Look You Leap Scope aroud the jumps first, ot over them. Kow your ladigs are clear ad clear yourself out of the ladig area. # 02 Easy Style It Start small ad work your way up. # 03 Respect Gets Respect From the lift lie through the park.