“Skiers are known to say that ‘if you’re not falling, you’re not learning.’”
Donovan v. Sutton, 2019 UT App 161
Short answer: it depends. The Utah Court of Appeals recently affirmed dismissal of a skier’s injury claims because Utah’s laws recognize that skiing is an inherently dangerous and unpredictable activity and the injured skier failed to show the skier causing the accident was negligent. Let’s dig in and see what is so tricky about pursuing a skiing claim in Utah. (By the way, “skiing” in this context in Utah means any way of sliding down the hill including snowboarding, snow-biking, or any other ski-resort sanctioned way of getting down the mountain).
In Utah, to prevail on a claim for negligence, an injured person must establish “that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused (4) the plaintiff to suffer legally compensable damages.” And, generally “we all have a duty to exercise care when engaging in affirmative conduct that creates a risk of physical harm to others.”
In addition to these basic negligence elements, there are a few skiing-specific rules that also apply that make a ski-related claim a bit harder to pursue: 1) Skiers owe “a duty to other skiers to ski reasonably and within control.” 2) Unexpected, inadvertent falls and contact occur while skiing “despite the exercise of ordinary and reasonable care.” 3) Because skiers may “lose control even while exercising due care” and thereby “may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing,” evidence of an inadvertent fall, without more, is not proof of negligence. Finally, 4): “Some collisions between skiers are an inherent risk of skiing and may occur absent negligence.”
Now, let’s look at the recent case cited above. A nine-year-old minor (whose name is withheld but who we will call Suzy) who was skiing for perhaps her third time and was skiing on a beginner ski run (aptly named “First Time”). She had taken two ski lessons the previous year and was accompanied by her parents on the ski hill. Suzy was slowly wedging (the downhill point of the skis together and uphill end apart in the classic pizza slice position to keep the skier moving slowly) her way down the hill when she lost control and ran into the back of Donovan, an experienced skier who had stopped on the hill to take a picture. Donovan was injured and brought claims against Suzy and her parents for negligence and negligent supervision.
Before the case got to trial, the judge entered judgment against Donovan holding that she could not, as a matter of law (hence, no need to present it to a jury), prove Suzy was negligent. This ruling was upheld on appeal. Donovan essentially failed to present any evidence that Suzy should have done something to avoid the accident or her parents failed to properly supervise Suzy. It is unclear whether this was simply a failure on the part of Donovan to create the evidence or whether the evidence simply did not exist. By “create the evidence” I simply mean obtain expert testimony as to the duties of a skier and whether a skier has breached those duties. For example, Donovan presented the rule that a skier is required “to avoid collision with the person below her.” However, Donovan failed to present evidence that Suzy failed to meet this rule. As we read the law above, the fact that a collision occurred does not automatically mean that there was negligence when it comes to skiing. Hence, Donovan’s claim was dismissed.
A few personal observations: Donovan, who is an advanced skier, stopped on a bunny hill and complains about getting hit from behind?! Seriously? She should expect to get hit by a novice skier on the beginner slope. That’s the whole point of creating beginner slopes– keep the beginners contained in an area where they are less likely to hurt others. It’s when beginners venture beyond the bunny slope that they become truly dangerous. Second, Donovan was out there taking selfies on the beginner hill– she couldn’t find a better spot? Was she aware of where she was? Finally, sometimes lawsuits are driven by the seriousness of the injury. I hope Donovan is ok and has no serious, permanent injury. It would really be unfortunate if her ability to ski was permanently marred. All the best, Donovan. And to Suzy, don’t let this stop you from enjoying skiing for many years to come!
Skiing Injury? For the rest of you, you may have suffered a serious skiing injury that was caused by the negligence of others– by someone’s conduct that should not be excused like Suzy’s. You likely have more questions than this post or the other information on this website can provide. Every situation is unique. If you have been injured, feel free to reach out to me to discuss your circumstances further. You cannot make a good decision if you do not get competent advice from a qualified, experienced attorney. You need to protect yourself and your loved-ones from the often devastating effects of permanent injury or death. You do this by pursuing what you are entitled to. Call me.