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Premises liability: Skiing is special

David HuntBrad broke his leg while skiing at Snow Flake Resort in Idaho and sued Snow Flake Resort for negligence. At trial, evidence emerged that Brad was skiing out of control when he fell. However, the resort also contributed to his fall because it knew of a bare spot on the run but failed to mark it and Brad hit this spot.

Generally, business owners in Idaho have a legal duty to keep their sites in a “reasonably safe” condition and must also warn customers of any hidden dangers that they are aware of or should be aware of after reasonable investigation. If their failure to do this causes an injury, they may be found liable for negligence.

In cases where the customer is also negligent, as was the case with Brad’s reckless skiing, business owners may still be found liable for a proportionate share of damages if the owner’s negligence accounts for more than 50 percent of the cause of the injury. Deciding who is responsible for what portion of the injury is up to a jury. This is known as comparative responsibility.

The rules of premises liability and comparative responsibility apply generally to negligence cases in Idaho unless the customer “expressly assumes” the full risk of any injury. The doctrine of “express assumption of risk” allows Idaho law to be very favorable to ski area operators.

Title Six Chapter Eleven of the Idaho Code provides that “Each skier expressly assumes the risk of, and legal responsibility for, any injury to person or property which results from participation in the sport of skiing.” That statutory assumption of risk is a complete bar to recovery against a resort for skiing injuries unless the injury results from the resort’s failure to comply with one of ten specific duties:

1. Mark all trail maintenance vehicles and use flashing lights when moving.

2. Mark any snowmaking equipment on the slopes.

3. Mark the difficulty of all trails and any closed trails.

4. Post maps at prominent locations displaying each trail’s difficulty and whether each trail is open or closed.

5. Display “conspicuous notice” whenever snow grooming or snowmaking is taking place on an open slope.

6. Post notice that Idaho law requires the use of ski retention devices.

7. Provide a competent ski patrol.

8. Post a sign at the bottom of any chairlift advising passengers to seek help if they are unfamiliar with riding the lift.

9. Operate and maintain chairlifts in accordance with national standard safety requirements.

10. Do not intentionally or negligently cause injury (negligence here means failure to comply with one of the previously enumerated duties).

An injured skier may have a viable claim against a resort only if his injury is caused by the resort’s failure to comply with one of its ten statutory duties. Recovery against the resort for all other injuries is barred, including injuries caused by bare spots, rocks, trees, roots, lift towers, utility poles, collisions with other skiers, and objects dropped or thrown from a chairlift.

So how does Brad fare in his case against Snow Flake Resort? In some states, and in most non-skiing premises liability cases in Idaho, the resort could be found negligent for failing to warn Brad of the bare spot since they knew it was there. The jury would then decide how much that bare spot actually contributed to Brad’s broken leg in relation to how much Brad himself contributed to the accident. If the jury felt that the bare spot was responsible for 60 percent of the accident, the resort could be liable for 60 percent of Brad’s damages.

But, because Snow Flake is a ski resort in Idaho, Brad expressly assumed the risks of skiing and he is therefore completely barred from recovering any damages from the resort unless the resort violated one of its statutory duties. Since “warning of bare spots” is not one of those duties, Snow Flake Resort is not liable for Brad’s injury.

Dave Hunt is an associate in the litigation department of the Boise office of Perkins Coie; he focuses primarily on complex commercial litigation matters.

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