This was originally posted on the SGR Blog.
Was Ski Resort Liable for Injury?
Snow skiing presents inherent and foreseeable risks of injury on the slopes. But, as a recent case illustrates, the Court may have to determine if a mechanical failure, such as a faulty tow-line, was a risk that a skier inherently and foreseeably assumed.
Lauren Dowd-Dowd-Shedlock was a customer at Toggenburg Ski Center on January 24, 2014 with her three-year-old niece. She was assisting her niece on a beginner’s trail, which had a tow rope consisting of a rope pulling tow, with handles which hung perpendicular to the ground. As Dowd-Shedlock waited with her niece to be towed up the hill, a tow handle which had turned and was parallel to the ground struck her in the back of the knee. Dowd-Shedlock alleged that Toggenburg was negligent in failing to properly warn users of the tow rope and the associated dangers.
Dowd-Shedlock moved for summary judgment and was required to establish that Toggenburg was negligent as a matter of law, and the burden was on her to submit evidence sufficient to show that Toggenburg created a dangerous condition over and above the usual dangers inherent in the sport of downhill skiing.
Dowd-Shedlock relied on the deposition testimony of Ed Waite, a Toggenburg manager, to show that the beginner’s hill was roughly 400 feet overall in length with one tow rope for that hill. Waite testified that there was a small operator shack at the bottom of the hill and an employee was assigned to sit in the shack, operate the lift, and observe the skiers. According to Waite, signs were required to be mounted on cones that say “load here” and the operator was to make sure that the skiers were loading in the proper place and to tell skiers if they were using the tow improperly.
Waite also testified that, to use the lift, the skier was to stand at the designated loading area and look over his or her shoulder and grab the handle when it passed by. According to Waite, the lift was a tow rope running between two wheels; the handles hung from the rope, which were 12 to 16 inches long and were solid plastic. He further testified that while the handles should be perpendicular to the ground, sometimes they swung into a horizontal position. The operator was expected to watch the lift at all times and for that reason there was never an occasion where the lift operator should have left the building.
Dowd-Shedlock testified that she arrived at 10:30 a.m. and the incident occurred around 11:00 a.m. When they arrived, the tow rope was not operating and she told the person at the front desk that the reason they were there was to teach her young niece how to ski. An employee turned on the tow rope. The accident occurred during their third run up the hill. According to Dowd-Shedlock, she went up the lift with her niece between her legs, claiming that she had been previously instructed to do this with a young child by one of Toggenberg’s employees. She testified there was no attendant on the slope where they were skiing and no sign where they should load. Nor were there instructions on how to use the tow rope.
Dowd-Shedlock believed that there were approximately ten people on the hill, four of whom were her family members. She waited to position her niece while the handles went by. The handles were hanging down perpendicular to the ground but one of them swung into a horizontal position and struck her directly in the left leg, causing her to fall. Dowd-Shedlock provided affidavits from several family members to corroborate her account.
Toggenburg’s lift log described the incident as “injury due to paddles spinning. Ski patrol came, tightened line, fixed 12:10.” Dowd-Shedlock argued that Toggenburg knew the handles could turn horizontally and was aware of the potentially dangerous condition. She alleged that Toggenburg failed to warn her of the potential danger, provide proper and adequate assistance for customers using the tow rope, properly train and supervise its employees, and properly tighten the rope which caused the handles to swing in a horizontal position.
The Court found that Dowd-Shedlock was not entitled to summary judgment because she failed in the first instance to establish through admissible submissions that she had met her burden. Assuming arguendo that she had met that burden, Toggenburg raised an issue of fact in opposition. Dowd-Shedlock was correct that while there was undoubtedly a risk of injury inherent in using a tow rope or riding a chairlift at a ski resort, it was not of such magnitude to eliminate all duty of care and thereby insulate the owner from claims of negligent supervision and training of a lift operator or negligent maintenance and operation of the lift itself, since such negligence might unduly enhance the level of risk assumed.
Dowd-Shedlock presented prima facie evidence that Toggenburg was responsible for assigning a lift operator to delineate where skiers were to load for the tow rope and to watch skiers to make sure they were skiing and using the lift appropriately. She also demonstrated that the handles could turn horizontally, with a potential for a skier to be struck. She claimed that her allegation that the handle swung because the tow rope was not properly tightened was established by the fact that the rope was immediately tightened thereafter. However, that was without merit because subsequent repairs were inadmissible to prove negligence.
Dowd-Shedlock conceded that the issue of proximate cause was generally a question of fact for the jury, but also contended that it was undisputed that she was not told where to load; was subsequently struck by the handle; and Toggenburg violated its own policy by failing to tell skiers where to load. However, she offered no expert affidavit to support those claims.
Toggenburg demonstrated that factual disputes existed through the affidavit of Waite, its manager, upon whose deposition testimony Dowd-Shedlock relied. Waite worked as the outside operations manager over three years before the date of the accident, during which time he was responsible for overseeing lift operations and lift maintenance. He detailed the practice lift operators followed each day before opening the tow rope to the public.
Waite’s affidavit established the custom and habit evidence to show that the directions for loading and other signs were posted at the time of the accident and that a lift operator was stationed in the lift shack at the bottom of the hill. Evidence of a deliberate repetitive practice by employees of a business was admissible to prove employees followed the deliberate repetitive practice on the date of the accident. Habit evidence was appropriate where the proof demonstrated a deliberate and repetitive practice by the person who was in complete control of the circumstances.
Waite described the components of the lift as a rope in a loop which ran around bull wheels at the top and bottom of the lift and was powered by an electric motor at the bottom of the lift. Handles were attached to the wire rope at regular intervals. The bull wheels had rubber liners which guided the rope and handles around the hull wheel; as the handles passed around the wheel at the bottom and top they moved from a vertical to horizontal position and then returned to a vertical position as they leave the wheel.
According to Waite, it was normal for there to be some roll to the rope as it passed through and exited the rubber liner in the wheel and it was normal for there to be some swing to the handles as they exited the liner. He also noted that the lift was inspected each year by the Department of Labor, including two months prior to Dowd-Shedlock ’s accident, when he was present and that it passed inspection. He further stated that the small building at the base had posted signs concerning the use of the lift and provided copies and described the operator’s responsibilities concerning the completion of a safety check of the entire lift prior to opening, identified the operator that day and her completed log. He also noted that, prior to opening, an employee followed the same procedures of placing orange cones and signs along the lift that stated say “wait here,” “load here,” “stay in tow path,” “prepare to unload,” and “unload here.”
According to Waite, the location of the signs depended on the weather and snow conditions. After the assigned operator placed the cones and signs, she turned on the lift and watched the lift operate for two to three complete revolutions to make sure it worked properly and then made sure the handles were spaced evenly along the wire rope and checked the safety circuits at the top and bottom to make sure the lift stopped when the safety circuits were operated. Waite also stated that it was Toggenburg’s practice to operate the lift only when an operator was present at the operator’s station in the lift shack at the bottom of the run. He also noted that, based on where the accident occurred, the lift could have only been stopped if the lift operator activated the stop button. Thus, the Waite affidavit alone was sufficient to establish at a minimum a question of fact as to whether the lift was properly inspected before it opened to the public on the date of the accident; whether an operator was in the building at the base of the lift; and weather the “load here” sign was posted at the base.
The affidavit of Brian Heon indicated that he had worked for several years as a lift manager overseeing twenty lifts, including day to day operations. He was the Vice Chairman of NTSB/ANSI B77.1 which publishes standards for passenger tramways, including lifts like the handle tow involved here. He was also a member of the National Ski Areas Association and had been an instructor. He was familiar with the type of handle tow in this case.
He described the lift in great detail, noting that handle tows are commonly used by ski areas throughout the United States to provide skiers access to primarily beginner terrain. Based on his review of the lift log relating to the task performed by the operator before the lift opened to the public on the date of the accident, it was operating appropriately. He indicated that the handles on a properly inspected and maintained handle tow did not always remain perpendicular to the snow surface as they travel between the upper and lower wheels, as the handles could naturally sway because they move from the vertical to the horizontal position when they enter the rubber sleeve lining of the bull wheel and remain horizontal as the wire rope to which they are attached moved around the wheel in the rubber sleeve and moved from the horizontal to the vertical position when they exited the sleeve lining of the bull wheel. In his opinion, the fact that the handle, which allegedly grabbed Dowd-Sherlock behind her knee, may not have been perpendicular to the snow surface and may have been horizontal, did not constitute a defect in the handle tow or evidence of an improper inspection. He also noted that handles at the loading area and elsewhere on the rope between the two wheels could be caused to swing from a skier dropping the handle as they unloaded at the top, a skier falling as they rode up, or a skier skiing outside the designated path. Because Toggenburg raised issues of fact, Dowd-Dowd-Shedlock ’s motion for summary judgment on the complaint was denied.
Dowd-Dowd-Shedlock ’s motion in the alternative to dismiss Toggenburg’s affirmative defenses of assumption of risk and comparative negligence was denied—because Toggenburg provided sufficient evidence to establish a question of fact as to whether Dowd-Dowd-Shedlock assumed the risk of her injury and was comparatively negligent. Under the primary doctrine of assumption of risk, a person who voluntarily participates in a sporting activity generally consents by his or her own participation to those injury causing events, conditions, and risks that are inherent in that activity.
As a general matter, an experienced skier assumes the risk caused by variations in terrain and weather conditions that are incidental to the furnishing of a ski area. Riding a ski lift carries a certain amount of risk and it was beyond dispute that there was an inherent risk of injury to participants in downhill skiing. There was also risk of injury in entering, riding, and exiting from a chairlift. The same applied to the use of a tow rope.
Dowd-Dowd-Shedlock admitted that she used the handle tow while she was growing up and learning to ski. She knew the handles could sway and that she could fall while using the handle tow and get hurt. She admitted at her deposition she had fallen while using the tow rope before the date of the accident. Despite the knowledge that the handles could sway she submitted no evidence showing she was standing far enough away from the cable to avoid being struck. An issue of fact was created for the same reasons with respect to Dowd-Dowd-Shedlock ’s comparative negligence.
Dowd-Dowd-Shedlock ’s motion for summary judgment on the issue of liability was denied. Her motion in the alternative for dismissal of the affirmative defenses of assumption of the risk and comparative negligence was also denied.