Remember the old stereotype of the unlucky skier sitting by the lodge fireplace wearing a ski sweater and a leg cast? In the early days of skiing, the public perception was that anyone who ventured onto the slopes was at considerable risk. Broken bones were seen as a normal, if not inevitable, part of skiing.
Public perception has changed. Advances in equipment, especially bindings, have reduced injury rates, while improvements in grooming and trail design also have made the sport safer. Skiers increasingly expect their days to be injury-free. In the safety-conscious era of helmets and speed patrols, people no longer see collisions between skiers as acceptable and are more likely to view skiers who cause them as perpetrators to be punished. Americans also are famously in love with liability litigation and the slopes are not immune, with more on-snow incidents ending up in court.
The controversial Colorado criminal case of The People vs. Nathan Hall is one such example, and is considered a landmark trial by ski-law experts. The ski industry will be watching closely as the case and its ramifications play out. Hall, 18, had finished a shift as a Vail lift operator on the last day of the season in April 1997. He was racing down the bottom of the Riva Ridge slope, just below the North Face Catwalk, when he lost control and slammed into Alan Cobb, 33, killing him. According to witnesses, Hall, who had been a member of his Chico, Calif., high school ski team, was skiing too fast for conditions, taking a straight line down the steep run, leaning back on his skis with his arms straight out, bouncing off the tops of moguls just before he hit Cobb.
An Eagle County Court judge dismissed manslaughter charges against Hall, and an appeals court upheld that decision, saying that skiing too fast for conditions could not be expected to cause someone’s death. But in the first decision of its kind in the country last April, the Colorado Supreme Court overturned the lower-court decisions, sending Hall to trial on the manslaughter charges, with the trial expected to be concluded by early ski season. If convicted, Hall faces a maximum of six years in prison and as much as $500,000 in fines.
The case sets a legal precedent in Colorado that being hit by a reckless skier is not an inherent danger of skiing, which will make it easier for some collision victims to collect damages in civil cases. In the future, lower-court judges in Colorado looking at similar cases will be obliged to follow the state Supreme Court ruling, making it likely this will not be the last case of its kind.
“The People vs. Hall is a turning point,” says Denver attorney Jim Chalat, an expert in ski law who has been representing plaintiffs in skier-collision cases for decades. “It reflects a public policy of condemnation of reckless skiing and a condemnation of the concept that skiing is necessarily a high-risk sport and that you subject yourself to these kinds of injuries and accidents when you go skiing.”
Chalat and other attorneys believe that the Hall case is a product of decades of shifting perceptions of the sport by skiers and non-skiers alike. “There is a change in the overall point of view. I’ve seen it in the courtrooms over the past 20 years,” Chalat says. “When I tried my first skier-versus-skier case, probably 21 years ago, it was very clear that the jury thought that if you go skiing and get hurt, that’s too bad, no matter what the circumstances.”
Even though Vail reached an undisclosed settlement with Cobb’s family before the criminal case went to trial, Jerry Jones, the former president of Beaver Creek and former executive vice president of Vail Associates, says resorts are still concerned about what it could mean in future cases. “The industry is watching it because of the liability factor,” Jones says. “It sets a precedent, and if the same thing happens to another skier in another situation, there’s the liability of the criminal case, but you cann also be concerned about the lawsuit that will come with it. If one of our employees was found guilty of murdering a guest on the mountain, we can just imagine what the lawsuit would be.” Porter Wharton, senior vice president of public affairs for Vail Resorts, says, “We’re concerned about how the courts will view personal actions on the slopes and whether that will have some kind of impact on the way that we need to conduct our businesses.”
Some industry insiders are worried that the Hall case may signal a pendulum swing back to the Eighties, when liability fears prompted resorts to close backcountry access, ban jumping, rope off extreme routes and generally sanitize the sport.
While ski areas pause to consider the meaning of the Hall case, the focus on liability for reckless skiing might cause skiers to wonder just what their legal rights and responsibilities are as they click into their bindings and push off to start a run. The fact is, it can vary greatly depending on which state you are skiing in.
Most ski states have passed ski-safety laws that give resorts immunity in certain kinds of accidents. For example, one universal rule is that when a skier collides with a tree or lift tower, that is considered an inherent risk of the sport and not the fault of the ski area. State laws sometimes also list what a skier’s responsibilities are. For example, the Colorado Ski Safety Act includes provisions that people must ski within the limits of their ability and maintain a proper lookout so as to avoid colliding with other skiers. Other skiing states, such as Oregon, Utah and Vermont, have adopted similar statutes.
Afew states have bucked that trend. One that stands out is California, which is the only major ski-industry state that has never passed a ski-safety law. While most of the rest of the skiing nation has clamped down on reckless skiing, attorneys say that California over the past decade has, in fact, made it easier to get away with it. The California Supreme Court ruled in a 1997 case that a skier who collides with another skier is not responsible for civil damages, as long as he hasn’t been negligent to an extreme; skiing while drunk, for example. A few California counties have passed ordinances that make reckless skiing a misdemeanor, and state laws about general recklessness can apply. Though opinions differ, some California lawyers insist that a skier could do exactly the same thing in California that Hall did in Colorado without being charged with a crime or even being liable for damages in a civil case.
Paul Rudder, a Mammoth Lakes, Calif., attorney with more than 20 years of experience representing plaintiffs in ski collisions, says, “In California, if you get run over by another skier or snowboarder, it’s your problem even if it’s entirely his fault.”
John Fagan, counsel for the California Ski Industry Association and for Mammoth Mountain, Squaw Valley and other major California ski areas, points out, “Under California law, there is a broad range of skier collisions that are considered inherent risks of the sport that are not actionable in California but may be actionable in other states. It’s ultimately going to be up to the courts to decide whether conduct such as someone looking over their shoulder and colliding with someone else is going to be actionable or not.”
The variation in state ski laws is one reason the Hall case has received national attention. Colorado is influential in the area of establishing ski law. Although courts in other states don’t have to follow a Colorado Supreme Court decision, some will look to that precedent for guidance in their own ski cases. The Hall decision could end up prodding other states, possibly even California, to move closer to the idea that skiers who act carelessly and injure others will increasingly end up defending themselves in court.