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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No Padding? No Complaint The Wall Street Journal ($) ran an article the other day detailing how NFL players are wearing less padding than at any point since the early days of the game. The reasons? Aesthetics, quickness, peer pressure and wanting to "look tough."

In 1995, the NFL changed hip, thigh and knee pads from "mandatory" to "recommended" equipment because so many players were stripping down that the earlier rule was considered unenforceable. A few NFL teams require players to wear thigh and knee pads but even on those teams, "there are transgressors," says Ronnie Barnes, vice president for medical services for the New York Giants. Hip, thigh and knee pads are required in high-school and college games.



"Speed, man," says Rams safety Antuan Edwards. "The game is so fast, you want to be as light as possible." Mr. Edwards ditched leg pads when he entered the NFL five years ago. "You feel a difference," he says. "At least you want to think you feel a difference."



Showing off muscular, padless legs encased in spandex doesn't hurt, either. "It does look good, doesn't it?" says Mr. Edwards, smiling.

One hopes that this does not lead to more debilitating injuries for players, although the article suggests that the smaller shoulder pads used today may have driven up the number of rotator cuff injuries. If injuries do increase, could the NFL face liability for not adequately warning its players of the dangers of less padding? I don't think so, because these athletes are adults and the dangers are apparent. But the NFL would be wise to pad itself and make players sign mandatory forms acknowledging the dangers inherent with not wearing the suggested padding. This will "pad" the league in the event of any future lawsuit.

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Accord Reached on DC Stadium: From the Washington Post:

Under the new proposal, which the 13-member council is to vote on today, the city will purchase insurance for potential cost overruns on the stadium and split the payments with Major League Baseball. Also, District officials will continue pursuing private financing for the project for several months. But Cropp said she will drop a requirement that 50 percent of the construction costs be paid for with private money.

The Sports Economist has more.

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A Vicious Hit: I watched live the hit that Jaguar Donovin Darius put on Packer Robert Ferguson last night. It was vicious and it even looked intentional. He was right to be ejected the game and he will be fined by the NFL. But should he face legal liability? No.



Most likely, he will not, because Ferguson (thank goodness) appears that he will make a full recovery. If Ferguson had been more seriously injured, however, legal liability certainly would have been discussed, if not pursued. Witness the plea deal being discussed in the Todd Bertuzzi case. This just harkens back to an action being judged by its results and not by the action itself. But Darius's hit, however vicious, is part of the game of football. So much a part, in fact, that it has a name: clothesline. It may be against the rules, and the league is right to punish Darius for breaking those rules, but it should not lead to legal liability off of the field.

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Mets v. Sportschannel: From New York Lawyer:

The New York Mets won an early round of litigation yesterday with a ruling rejecting Sportschannel's plea for a preliminary injunction that would have blocked the Mets from negotiating a new licensing deal for a regional sports network.



Sportschannel Associates v. Sterling Mets, No. 603548/04, by Manhattan Supreme Court Justice Helen Freedman of the Commercial Division arose from a licensing agreement granting Sportschannel exclusive rights to broadcast the Mets regular season games.



The contract was set to expire in 2011 but included a buy-out clause the Mets exercised in May. The move truncated Sportschannel's license at the end of the 2005 season.

Hat tip Trademark Blog.

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Baseball and Drugs Links: An op-ed in the New York Times today highlights a major problem of the current drug problem in sports: it does not stop at the professional or collegiate level, but is also seen in high school. My brother was friends with the young athlete mentioned in this piece, and so I know first-hand the dangerous consequences of performance-enhancing drugs.



For a great deal more on this topic, check out Only Baseball Matters, where John has a number of posts and many links to outside sources that have addressed this issue.



And the debate at Legal Affairs continues between Roberts and Finkelman.



Update: For more on the impact performance-enhancing drugs can have on children, read this article from the current Newsweek. Plano West, the school featured on the cover, is where both of my brothers went and is across the street from my parents' house.



You may also remember Plano from such scandals as the heroin bust that occurred at my high school in the late 90s, as well as the rash of teenage suicides from a decade earlier. This is a city that has been named a Top-10 Kid Friendly city and one of the Top 50 places in America to raise a family.

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More on the DC No-tionals: As expected, Major League Baseball rejected the DC Council's modified stadium financing proposal, putting the Expos/Nationals back into the realm of uncertainty. In the comments to yesterday's post, Mike correctly wonders how such an important vote could have come so late in the process. In DC, Mike Wilbon echoes this sentiment, while also noting that despite all of the political rhetoric, the nation's capital is still baseball-crazy. Thomas Boswell continues his sharp criticism of the DC Council and poses a good hypothetical: what if it were baseball trying to change the terms of the deal at the last minute? One expects that people in DC and elsewhere would not be too happy with this type of negotiation. But Prof. Sauer thinks that when this is all over, Mayor Williams and Commissioner Selig may wind up being the villains anyway. He also links to Off Wing, which has some excellent coverage of this issue.



Baseball is often the villain, but it seems to me that it was handed a raw deal in this case. The league really was not that interested in bringing a team back to the capital, due to the multiple failures in the past and the intense opposition from Peter Angelos and the Baltimore Orioles. However, MLB agreed to bring the team there because it would receive something it found beneficial: a publicly-financed stadium that would help the team find an owner (something that has been missing for two years). If DC had been upfront about not financing the stadium, then the Washington Nationals would never have come to be in the first place. You can blame Mayor Williams for not securing political support, or the DC Council for holding back its intense opposition until the 11th hour, but it seems unfair to blame baseball. After all, Selig was not negotiating with an unintelligent party with no resources. The deal was struck with a city and a mayor that should have known what they were getting into.

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