General Comparative Ski Law
Colorado lawyers who specialize in ski law are often called on to answer questions about how Colorado law and practice compares to that of other states. Also, many people from other states who are injured on the Colorado slopes may ask Colorado lawyers about ski law in their home states. Knowledge of other states’ laws, therefore, may be helpful in distinguishing improper application of assumption of risk rules, especially in cases involving co-participant liability such as when a passenger misloads or is unable to unload safely due to a misload of another skier on the lift or a skier/skier collision.
Most states with a significant ski industry have statutes or case law, or a combination of both, that state that skiing carries inherent risks for which damages cannot be recovered.
States with ski laws that include some form of an inherent danger scheme wherein the skier (by virtue of his or her participation in the sport) has assumed those risks inherent or integral the sport include: Alaska, Arizona, California, Idaho, Maine, Massachusetts, New Hampshire, Oregon, Pennsylvania, Vermont, Utah, and Wyoming.
Alaska imposes statutory duties and obligations on both ski area operators and skiers. A skier cannot recover for injuries sustained as a result of inherent risks of skiing which include “changing weather conditions; snow conditions as they exist or may change, including ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions including bare spots, forest growth, rocks, stumps, streams, streambeds, and trees, or other natural objects, and collisions with natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures, and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including roads and catwalks or other terrain modifications; collision with other skiers; and the failure of skiers to ski within their own abilities”. Alaska Stat. § 05.45.200. The risk of a skier/skier collision is not a risk assumed in an action against another skier. Alaska Stat. § 05.45.100(a). If an injury is caused by a combination of inherent danger and skier negligence, comparative negligence principles apply. See Hiibschman By & Through Welch v. City of Valdez, 821 P.2d 1354, 1364 (Alaska 1991).
Arizona provides a liability framework that generally maintains common-law negligence principles while immunizing ski area operators from lawsuits for injuries arising from the inherent risks of skiing. McCaw v. Arizona Snowbowl Resort, 1 CA-CV 21-0585, 2022 WL 17097187, at *6 (Ariz. Ct. App. Nov. 22, 2022). When an injury does not arise out of a risk inherent to skiing, common-law negligence principles apply, including a duty of care owed to business invitees. Id. Arizona’s Ski Safety Act imposes a duty on skiers to have the knowledge and ability to safely load, ride, and unload from a ski lift, but it does not identify passage on a ski lift as an inherent risk of skiing. In fact, other provisions in the Act demonstrate that a ski area operator owes a duty of care to ski lift passengers. Id.; A.R.S. § 5-702(B). Ski area operators have a duty to make certain postings and provide equipment maintenance, the breach of which constitutes negligence per se. The Act imposes certain responsibilities on skiers, the violation of which constitutes a defense to a civil action. A.R.S. § 5-705. Arizona’s Ski Safety Act takes the position that skier/skier collisions are considered inherent risks of the sport. A.R.S. § 5-701(5)(f). If a ski area proves that the skier signed a valid release, the terms of the release govern. A.R.S. § 5-706.
Although California has no ski safety act, the California courts have consistently held that participants in the sport of skiing accept the dangers that inhere in that sport which are obvious and necessary. Connelly v. Mammoth Mountain Ski Area, 45 Cal. Rptr. 2d 855, 857–58 (Cal. Ct. App. 1995), as modified (Oct. 17, 1995). Those dangers have been held to include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment. (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 123, 266 Cal.Rptr. 749, quoting from Mich.Stat.Ann., § 18.483(22)(2).)” (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th at pp. 752–753, 33 Cal.Rptr.2d 732; Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 253, 38 Cal.Rptr.2d 65, internal quotation marks and parallel citations omitted, italics added.) Because of the obvious danger, the very existence of a ski lift tower serves as its own warning. (See Danieley, supra, at p. 122, 266 Cal.Rptr. 749.)
The California Court of Appeals has held that individual skiers or snowboarders do not owe a duty of care to others who might also be skiing or snowboarding on the same ski hill except if the at fault party enhances the risks of the activity. Mastro v. Petrick, 112 Cal. Rptr. 2d 185, 191 (Cal. Ct. App. 2001), as modified (Oct. 23, 2001). Those engaged in skiing or snowboarding only have a legal duty to not engage in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport. Mastro, 112 Cal. Rptr. 2d at 194. California courts have enforced waivers obtained at the time of the rental, purchasing, or servicing of ski bindings. Olsen v. Breeze, Inc., 55 Cal. Rptr. 2d 818, 825 (Cal. Ct. App. 1996), as modified (Aug. 13, 1996), as modified (Aug. 21, 1996); see also Westlye v. Look Sports, Inc., 22 Cal. Rptr. 2d 781 (Cal. Ct. App. 1993).
Connecticut has adopted a mixed approach of both statutory duties and negligence. Skiers accept the risks inherent in the sport, including variations in the slope and trail (except when caused by snow making, grooming, or rescue operations), trees, or other objects not within the confines of the slope, bare spots, and collisions with others. C.G.S. § 29-212. The Supreme Court of Connecticut has held that the negligence of an employee or agent of a ski area operator is not an inherent hazard of the sport of skiing for purposes of statute governing assumption of risk of injury by skier. Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 819 (Conn. 2004); see also C.G.S.A. § 29–212 (“collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.”)
In Idaho, ski area operators are liable for losses or damages caused by its failure to follow the duties set forth in statute. I.C. § 6-1107. Idaho statutorily has set forth the totality of the duties with which ski area operators must comply and they have no other duties. I.C. § 6-1103; Davis v. Sun Valley Ski Educ. Found., Inc., 941 P.2d 1301, 1304 (Idaho 1997). Skiers are liable for losses or damages resulting from their violations of the duties set out in statute. I.C. § 6-1109.
The Maine statutes dealing with skiing exemplify the inherent risk approach. Inherent risks are those that are an integral part of the sport. ME.R.S. § 15217(1). These include changing weather; bare spots; and collisions with lift towers, lights, and other skiers. Id. The responsibility for a collision between any skier while skiing and any person or object is solely that of the skier or skiers involved in the collision and not the responsibility of the ski area operator or its agents, representatives or employees. ME.R.S. § 15217(5). The Maine Ski Safety Act does not prevent a person from bringing a civil suit against a ski area operator for the negligent operation or maintenance of the ski area; or the negligent design, construction, operation or maintenance of a passenger tramway. ME.R.S. § 15217(8).
Massachusetts law is a mixture of negligence and inherent danger. A ski area operator has a general duty to operate the “ski areas under its control in a reasonably safe manner.” Mass. Gen. L. § 71N(6); Brush v. Jiminy Peak Mountain Resort, Inc., 626 F. Supp. 2d 139, 147 (D. Mass. 2009). Yet, “ski area operators shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.” Mass. Gen. L. 143, § 71N(6). The Massachusetts statutes do identify some specific unavoidable risks inherent in the sport of skiing such as variations in terrain, surface or subsurface snow, ice conditions or bare spots, in which skiers assume the risk of injury. Mass. Gen. L. § 710; McHerron v. Jiminy Peak, Inc., 665 N.E.2d 26, 27 (Mass. 1996).
New Hampshire bars most claims against ski area operators because, according to statute, skiing involves risks and hazards that must be assumed by the skier regardless of the safety measures taken by the operator. N.H.R.S. § 225-A:1; see also Cecere v. Loon Mountain Recreation Corp., 923 A.2d 198 (N.H. 2007).
Oregon has a modified inherent danger scheme whereby skiers assume the inherent risks of skiing insofar as they are reasonably obvious, expected, and necessary[JC1] . It has been held in Oregon courts that by providing that a skier assumes the “inherent risks of skiing,” the legislature reduced ski area operators’ heightened common law duty to discover and guard against certain natural and inherent risks of harm. Importantly though, it has been further found that the Skier Responsibility Law did not abrogate the common-law principle that skiers do not assume responsibility for unreasonable conditions created by a ski area operator insofar as those conditions are not inherent to the activity. Bagley v. Mt. Bachelor, Inc., 340 P.3d 27, 41 (Or. 2014); see also Nolan v. Mt. Bachelor, Inc., 317 Or. 328, 336, 856 P.2d 305 (1993) (Skier Responsibility Law provides that “[t]o the extent an injury is caused by an inherent risk of skiing, a skier will not recover against a ski area operator; to the extent an injury is a result of [ski area operator] negligence, comparative negligence applies”). The Supreme Court of Oregon has held that the enforcement of a release between a skier and the operator of a ski area was unconscionable. Bagley, 340 P.3d at 45; see alsoBecker v. Hoodoo Ski Bowl Developers, Inc., 346 P.3d 620, 624 (Or. Ct. App. 2015).
Utah’s statute imposes on skiers the inherent risks of the sport. A skier may not make any claim against, or recover from, a ski area operator for injury resulting from inherent risks of skiing. Utah Code § 78B-4-403. Once the Operator of a ski area operator posts trail boards warning skiers of the inherent risks of skiing, it has discharged its duty of reasonable care—and therefore owes no further duty—with respect to the inherent risks of skiing, and skiers assume the risk of any injury caused by those risks to the extent that they are inherent risks within the meaning of Utah law. Utah Code § 78B-4-404; Rutherford v. Talisker Canyons Fin., Co., LLC, 445 P.3d 474, 490–91 (Utah 2019). The Act does require a case-by-case analysis to determine whether the injury-causing risk is truly an inherent risk of skiing. If the injury-causing risk is determined to not be an inherent risk of skiing, then the case falls outside the purview of the Utah Ski Act and the ski area operator’s compliance with the Utah Ski Act becomes immaterial with respect to defining the ski area operator’s duty. Rutherford, at 491, fn. 19. Skiers may recover for the negligence of another skier from that skier. In Utah, skiers have a duty to exercise reasonable care while skiing. Donovan v. Sutton, 498 P.3d 382, 388 (Utah 2021).
Vermont statutes provide that a skier assumes those inherent dangers that are obvious and necessary. V.S. § 1037. A skier’s assumption of the inherent risks of skiing does not abrogate the ski area’s duty to warn of or correct dangers which in the exercise of reasonable prudence in the circumstances could have been foreseen and corrected. Dalury v. S-K-I, Ltd., 670 A.2d 795, 800 (Vt. 1995). The Supreme Court of Vermont has held that if ski area operators were permitted to obtain broad waivers of their liability, an important incentive for ski areas to manage risk would be removed with the public bearing the cost of the resulting injuries. Dalury, 670 A.2d at 799.
In Wyoming, a skier may not make any claim against or recover from any ski area operator for injury resulting from any inherent risk of skiing. Wyo. Stat. § 1-1-123.4 (b). Ski area operators have strong protections written into the law, but the protections are not without limits. Wyoming law does not preclude a skier or snowboarder from prevailing on a negligence claim against the Operator of a ski area when he or she suffers damage, injury or death that is not the result of an inherent risk of skiing. If reasonable minds could differ as to whether or not the risk was one inherent to skiing, then answer to the question is one to be determined by a jury. Jackson Hole Mountain Resort Corp. v. Rohrman, 150 P.3d 167, 168 (Wyo. 2006). Wyoming also provides that is a misdemeanor for a person to ski while impaired by alcohol or drugs or to ski in a reckless disregard of the skier’s own or another’s safety. Wyo. S. § 6-9-301(a) and (b).
Montana, Nevada, New Mexico, New York, North Carolina, and Washington essentially follow a negligence standard. In interpreting Montana’s Skier Responsibility Ski Act, Montana courts have held that ski area operator’s duties are not limited to those set out in its ski act. Mead v. M.S.B., Inc., 872 P.2d 782, 788 (Mont. 1994). It has been held by a Federal court that Montana’s skier responsibility statutes cannot be read to immunize ski resorts from their own negligent or intentional acts, because such an interpretation would violate Montana’s constitution. Kopeikin v. Moonlight Basin Mgmt., LLC, 90 F. Supp. 3d 1103, 1107 (D. Mont. 2015), aff’d sub nom. Kopeikin v. Moonlight Basin Mgmt., 691 Fed. Appx. 355 (9th Cir. 2017). Montana’s statute expressly states that the duties of a ski area operator to skiers are consistent with a duty of reasonable care. Mont. Code § 23-2-733.
Nevada’s standard is statutory – “An operator shall take reasonable steps to minimize dangers and conditions within the operator’s control.” Nev. R.S. § 455A.160(3). But, “[a]n operator is not liable for the death or injury of a person or damages to property caused or sustained by a skier or snowboarder who knowingly enters an area which is not designated for skiing or snowboarding or which is outside the boundary of a snow recreation area. Nev. R.S. § 455A.160(2).
New Mexico’s statutes recognize, “A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” N.M. Stat. § 24-15-10 (A). But, ski area operators are subject to liability for violations of the duties laid out in statute in accordance with common-law principles of vicarious liability for the willful or negligent actions of its principals, and for injuries caused by agents or employees. N.M. Stat. § 24-15-11. Every ski area operator also has the duty to operate, repair and maintain all ski lifts in safe condition. N.M. Stat. § 24-15-8. Skiers may recover for the negligence of another skier from that skier. N.M. Stat. § 24-15-10(C).
New York places specific duties on ski area operators, including the duty to inspect the condition on each run twice a day, pad lift towers and man-made objects, and post signs and notices. N.Y. Gen. Oblig. Law § 18-103. The statutory duties are not exclusive and common law principles must be applied unless a particular hazardous condition is specifically addressed by the statute Sharrow v. New York State Olympic Reg’l Dev. Auth., 746 N.Y.S.2d 531, 542 (N.Y. Ct. Cl. 2002), aff’d, 762 N.Y.S.2d 703 (N.Y. App. Div. 2003). Skiers have their own set of duties defined in statute. N.Y. Gen. Oblig. Law § 18-105.
In North Carolina, ski areas cannot engage in conduct that willfully or negligently contributes to injury. N.C. Gen. Stat. § 99C-2(7). A Federal court has held that in view of statutory duty imposed on ski area operators by North Carolina statute to not engage willfully or negligently in any type of conduct that contributes to or causes injury to another person or his properties, North Carolina law did not permit enforcement of a release in conflict with that duty. Strawbridge v. Sugar Mountain Resort, Inc., 320 F. Supp. 2d 425, 432 (W.D.N.C. 2004), on reconsideration in part, 328 F. Supp. 2d 610 (W.D.N.C. 2004).
Finally, the Washington state courts have interpreted the Washington Ski Safety Act as not relieving ski areas of liability for their own negligence. Although the statute imposes both primary and secondary duties on skiers, it “does not purport to relieve ski operators from all liability for their own negligence.” Scott By & Through Scott v. Pac. W. Mountain Resort, 834 P.2d 6, 15 (Wash. 1992). Further, ski resorts owe a duty to skiers, who are business invitees, to provide “reasonably safe facilities.” Id. at 16. The resorts must “discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.” Id. at 15; see also Brown v. Stevens Pass, Inc., 984 P.2d 448, 451 (Wash. Ct. App. 1999).
This brief survey reveals a variety of differing approaches to the issues. That the ski industry might be important to the state’s overall economic well-being does not in itself mean that the ski industry will be provided absolute immunity. The various approaches can help guide Colorado practitioners in determining what constitutes an inherent risk and, in particular, what is and what is not integral to the sport. For example, the requirement of the New York statute regarding inspection of runs and padding of man-made objects is instructive. Wyoming’s decision to criminalize skiing while impaired and for reckless skiing also is instructive of what can be done to provide a safer skiing environment while maintaining the exciting nature of the sport.
Although Colorado law controls as to Colorado ski accidents, the significant number of out-of-state skiers, combined with the media scrutiny the subject has received, may foster preconceived notions for clients about what responsibilities other skiers or ski areas may have. Therefore, it is helpful for the practitioner to be conversant with the rudimentary aspects of alternative and out-of-state ski law, as well as to be able to compare how Colorado ski law works when advising, for instance, a New York or California client on the particulars of his or her accident case.
These are difficult issues. This information here is for educational purposes. If you have been injured while skiing or snowboarding and have questions about whether you have a claim you should call or email now for a free consultation. We are always happy to answer your questions even if you aren’t sure yet if you want to hire a lawyer