When a business’s consumers are skiers and snowboarders, knowing the potential liability for negligence is critical. Ski resort operators often encounter claims of unsafe terrain and failure to warn. Equipment manufacturers and sellers often run into product liability and personal injury claims regarding faulty bindings, skis, or other equipment.
Outdoor Sports Liability Protections
Early personal injury cases brought by skiers in the 1970s spurred a slew of protective measures for ski resorts and equipment manufacturers. To help boost the burgeoning industry, several states passed laws that limit negligence claims brought by injured skiers. But as outdoor sports become more common, and as resorts and retailers grow in size and capital, these protections may be thinning.
Typically, liability for skier accidents and injuries are limited under a doctrine recognizing the “inherent risk” of skiing. Laws in Colorado, Oregon and Utah provide that skiers assume inherent risks, which may include snow or ice conditions, steep terrain, and collisions with other skiers. Many statutes, such as Colorado’s Ski Safety Act, also outline specific requirements for ski area operators to reduce accident risk, such as requiring signage at trailheads and warnings of bad conditions. The laws also impose duties on skiers to ski safely and maintain control.
But courts appear to be chipping away at the inherent risks skiers assume. In December, the Colorado Supreme Court agreed to review a lower court’s ruling that inbound avalanches are part of the inherent risks skiers assume under the Ski Safety Act. The court’s decision may pave the way for more lawsuits against ski operators and product manufacturers.
Additionally, not every ski resort operates under the same laws. California resorts, for example, are not specifically protected or regulated by a comparable ski safety statute. Instead, businesses selling ski equipment and lift passes in California are governed by general property and commercial law.
To obtain protection in the absence of, or in addition to, the ski statutes, many resorts and outdoor retailers rely on liability waivers. Waivers can offer broad protection by requiring consumers to agree to release liability for accident claims based on negligence. But a recent case suggests such broad waivers may not always be enforceable.
In December, the Oregon Supreme Court ruled that a season pass waiver was unenforceable. The ruling will allow a personal injury lawsuit seeking $21.5 million to proceed against the resort. The broad waiver would have released the operator’s liability for negligence in constructing its terrain park. Reversing the opinion of the lower court, the Oregon Supreme Court found enforcement of the anticipatory release “unconscionable.”
The decision raises concerns about the enforceability of liability waivers contained in other ski resort transactions as well as in the sales of other sporting goods. The Oregon legislature may respond by proposing a bill to limit liability for companies selling to consumers engaging in high-risk sports and outdoor activities. Until then, the Supreme Court ruling may prompt additional lawsuits.
Companies operating in the outdoor and sporting injuries should pay close attention. As courts narrow the assumed risks of skiers and decline to enforce broad waiver provisions, careful drafting of warnings, notices, and specific waiver provisions may prove useful.