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Court reinstates ski resort lawsuit

  Court Watch  -   POSTED: 2007/12/20 14:56

Skiing is full of risks, and skiers assume the potential for injury when they try to navigate a course down a steep mountainside. But not all the risks are necessarily inherent ones, the Utah Supreme Court ruled Tuesday while reinstating a lawsuit filed by a man who slammed into a poorly marked retaining wall of stacked railroad ties. The high court overturned a lower court ruling that said Snowbird Corp. was protected from a lawsuit because of two waivers skier William Rothstein signed to get a season pass at the popular resort near Salt Lake City.

Rothstein suffered severe internal injuries when he skied into the wall at Snowbird in February 2003. Rothstein sued, claiming negligence, but a state District Court ruled in favor of Snowbird, citing the releases Rothstein signed.

The Supreme Court's 3-2 decision Tuesday restores Rothstein's lawsuit and clarifies state law.

"What it will do is to encourage ski resorts to be more careful in their operations," said Jesse Trentadue, a lawyer representing Rothstein.

Snowbird attorneys Gordon Strachan and Kevin Simon did not immediately return a message seeking comment. Peter Rietz, a Colorado lawyer who is special counsel to the National Ski Areas Association, said the ruling applies only to Utah resorts.

Snowbird maintained Rothstein skied off a connecting trail to an area that was marked off by rope. But the rope had a gap, which Rothstein mistook for an entrance to an open trail. The wall Rothstein hit had a light covering of snow and couldn't be seen. Rothstein survived broken ribs, a kidney injury, liver damage and a collapsed lung.

Snowbird won the earlier ruling on two releases Rothstein had signed, assuming all risks and specifically mentioning cases "including the negligence of Snowbird, its employees and agents."

But the Supreme Court decided that the releases go against a state law, which was written to protect resorts by keeping liability insurance rates affordable.

Resorts are covered by the state's Inherent Risks of Skiing Act, saying skiers assume some risks every time they swoosh down a steep mountainside or trail lined with trees.

The law is designed to keep insurance rates affordable for the resorts, not shield them from liability all together. Resorts are responsible to insure themselves non-inherent risks, the high court said.

The releases Rothstein signed for Snowbird "are contrary to the public policy of this state and are, therefore, unenforceable," the ruling said.

Associate Chief Justice Michael Wilkins, who cast one of the two dissenting votes, noted that nothing in the state law says ski resorts can't shield themselves from lawsuits for non-inherent risks.

"In fact, the text is silent about whether an individual may or may not sue a ski area operator on some other basis," Wilkins wrote.

Speaking from Dillon, Colo., Rietz said there are trade-offs when a skier gets a season pass.

"Part of the consideration when you get a discounted pass is you have to sign a waiver that provides some additional protection for the resort," he said. "If you don't want to release liability you can buy a day ticket."


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