Skiing and Legal Liability: A Tale of Two States The LA Times has a story comparing the legal regimes of California and Colorado when it comes to injuries on the ski slopes. It seems that skiers in Colorado face an increased risk of legal liability, both civil and criminal, than those in California.

Greater public awareness has reduced collisions on some slopes . . . . Resorts have installed warning signs, fencing and mazes in congested areas and intersections, and employees intercept reckless skiers and snowboarders during busy times.



Despite these measures, prosecutors and juries in Colorado, the nation's biggest ski state, have begun to conclude that skiers running over other skiers is no longer acceptable even for an inherently risky sport.



"It's a societal shift," says Michael Berry, president of the National Ski Areas Assn. "Skiers have been colliding since the second guy took up the sport. But people are far less tolerant of risk today."



A Colorado prosecutor first brought criminal charges against a runaway skier in 1988, after an 11-year-old child was killed in a skiing collision; the 31-year-old skier served jail time. A Colorado jury first awarded a multimillion-dollar verdict in a skiing-related civil suit in 1994 after a commodities trader crashed into a ballerina at Snowmass, damaging her knee.



[] "It's widely accepted now that if you run someone down in Colorado, you're responsible."



But not so in California. In 1997, the state Supreme Court held that skier collisions are, except in the most flagrant instances, an inherent risk of the sport, making it almost impossible for injured skiers to collect damages from those who hit them. Unless a runaway skier is guilty of "gross negligence" — conduct so reckless that it is outside the realm of the sport, which is generally interpreted as skiing while intoxicated — the person can't be held responsible, even if the accident causes injury or death.

It seems to me that neither state has it right. The regime in Colorado seems far too harsh -- there are a number of risks inherent in the sport that do not seem to be taken into account in these cases. And the California regime, requiring only intoxication to trigger legal liability, seems far too lenient. An appropriate standard would seem to use a standard of "recklessness," or wanton disregard for the safety of the other skiers. This would include skiing beyond one's limits, or blatantly disregarding the safety of others. If you cannot act a certain way in a car, you should not be able to act that way on the slopes.



But the imposition of legal liability should not be identical to driving, because of the risks inherent in a sport like skiing. Juries, judges and legislators must remember that all skiers assume a certain amount of risk every time they go up on a slope, and fellow skiers should not be punished for mere accidents, no matter how grave the outcome. Just because a skier dies, or a ballerina suffers a knee injury, does not mean that legal liability should follow. Yes, these cases are tragic, but they are often more a product of chance than a product of fault on the part of the injuring party. After all, what was a ballerina doing skiing anyway? Professional athletes have clauses in their contract preventing them from skiing and for good reason. Skiing is dangerous and the risk of injury is high. The legal world, especially in ski-crazy Colorado, should also understand this.

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