US Court of Appeals, Tenth Circuit: snow-covered stumps are "an inherent risk of skiing, a sport as thrilling as it can be risky."

[Mister Tea]

TL';DR Skier goes off-piste, hits a snow covered stump, is seriously injured, and sues the resort. Court: summary judgment, it's an inherent risk, no trial, not yours.

Full opinion here:

Opinions | Tenth Circuit | The United States Court of Appeals

www.ca10.uscourts.gov

 

[dbostedo]

TL';DR Skier goes off-piste, hits a snow covered stump, is seriously injured, and sues the resort. Court: summary judgment, it's an inherent risk, no trial, not yours.

Full opinion here:

Opinions | Tenth Circuit | The United States Court of Appeals

www.ca10.uscourts.gov

Well the ruling only applies to Wyoming as I read it. The incident was at Jackson Hole, and the court upheld the decision that under the Wyoming Recreation Safety Act, stumps are an inherent risk.

Other states could theoretically have a different outcome in a similar suit.

 

[François Pugh]

I am surprised skiers hitting buried stumps hasn't happened often enough to make it common knowledge that a suit would fail.
What's coming next week? Skier hits snow-covered rock, sues resort? Skier skis into snow covered stream - sues resort?
How about skier pays small fortune in legal fees on hopeless lawsuit, sues parents for raising an idiot?

On the other hand maybe he had to sue or his insurance wouldn't pay up.

 

[Seldomski]

My read is that the case was really about the way a particular tree was cut by the resort. The stump remaining was 6ft tall. Unusually tall for the resort to cut that tall (document says resort not really sure when, why, how it was cut), but something nature could have done as well (i.e. wind blows a tree over, it splits, and leaves a tall stump).

Sounds like the injury was pretty awful.

 

[coskigirl]

Well the ruling only applies to Wyoming as I read it. The incident was at Jackson Hole, and the court upheld the decision that under the Wyoming Recreation Safety Act, stumps are an inherent risk.

Other states could theoretically have a different outcome in a similar suit.

It’s a 10th circuit court of appeals case so while it is interpreting Wyoming law and it would be a secondary source in other states, other cases in 10th circuit states would be likely to follow closely if their laws are similar so I expect a Colorado case would have a similar ruling.

While I haven’t fully read and digested the case I like the Court’s plain language discussion of the issues here. Personally, I struggle with a balance between skiers recovering for unexpected risks and knowing that if we put too many of these risks on ski areas, they will simply cease to operate. My initial impression is that if this stump had been in the middle of a beginner trail, a claim would be reasonable. However, this was in a known off-piste area where unmarked obstacles are known and common. This was on the skier.

 

[Ulmerhutte]

….. While I haven’t fully read and digested the case I like the Court’s plain language discussion of the issues here. Personally, I struggle with a balance between skiers recovering for unexpected risks and knowing that if we put too many of these risks on ski areas, they will simply cease to operate. My initial impression is that if this stump had been in the middle of a beginner trail, a claim would be reasonable. However, this was in a known off-piste area where unmarked obstacles are known and common. This was on the skier.

…and there it is, IMHO. Off-piste, by its very nature, is uncontrolled and unmarked. A skier skilled enough to venture off the groomers should, you would reasonably expect, understand the resultant risks.

 

[coskigirl]

…and there it is, IMHO. Off-piste, by its very nature, is uncontrolled and unmarked. A skier skilled enough to venture off the groomers should, you would reasonably expect, understand the resultant risks.

In the US, off-piste but within a ski area boundary is absolutely controlled unless it is a closed area marked by signs and/or rope/fencing. That doesn't mean that every obstacle is marked though.

 

[mdf]

I tore my second ACL hitting something solid under the snow (the tip of the ski hit it square and stopped). It never occured to me to attribute it to anything but bad luck. (The resulting injury I partially attribute to the fact that I was standing with straight knees since I was approaching a flat and "not really skiing".)

Maybe if it had been a serious injury I'd feel different.

 

[sparty]

I am surprised skiers hitting buried stumps hasn't happened often enough to make it common knowledge that a suit would fail.
What's coming next week? Skier hits snow-covered rock, sues resort? Skier skis into snow covered stream - sues resort?
How about skier pays small fortune in legal fees on hopeless lawsuit, sues parents for raising an idiot?

On the other hand maybe he had to sue or his insurance wouldn't pay up.

Based only on personal experience, I'd be surprised if the insurance was all that eager to go after a ski area for a single-person, skier v. obstacle claim. I was worried about that after I hit a submerged (and unmarked) obstacle and ended up with my insurance picking up something in the neighborhood of $50k, but when they called to discuss the claim, it was a very short conversation when I told them I was skiing and crashed and there was no other skier involved. They didn't even ask about my bindings (not) releasing, which was probably just as well.

That said, I'd be pretty grumpy about someone cutting trees in a glade and leaving 6' stumps on general principle. If the intent is for the area to be skiable, any cut vegetation should be cut as close to flush as possible.

 

[dbostedo]

If the intent is for the area to be skiable, any cut vegetation should be cut as close to flush as possible.

That's simply not common practice though. A lot of places don't do any clearing... you've got risks of deadfall (that one scares me - skis go under, you go over), branches, stumps, bushes, etc. So when they do any cutting, however they do it, they aren't materially affecting the danger of the area. If they touted the safety of their nice cleared glades or off-piste runs, then I'd agree. But nobody does that - instead they all warn of unmarked obstacles/hazards.

 

[sparty]

That's simply not common practice though. A lot of places don't do any clearing... you've got risks of deadfall (that one scares me - skis go under, you go over), branches, stumps, bushes, etc. So when they do any cutting, however they do it, they aren't materially affecting the danger of the area. If they touted the safety of their nice cleared glades or off-piste runs, then I'd agree. But nobody does that - instead they all warn of unmarked obstacles/hazards.

I agree that they don't have any obligation to do so, and deadfall (along with a host of other hazards) is an inherent risk of skiing off-trail.

However, if you're going to cut the damn tree anyhow, kindly cut it as close to the ground as you can, because it makes for better skiing during low tide.*

*: I just read the actual decision, including the speculation that the tree may have been cut during the winter and near snow level. I hadn't thought of that scenario, while going back later and cutting it properly—which JHMR apparently did, following the incident—is a good thing to do, I can see how it could easily not end up happening, especially in areas that are tough to access on foot.

 

[Rich McP]

I am surprised skiers hitting buried stumps hasn't happened often enough to make it common knowledge that a suit would fail.
What's coming next week? Skier hits snow-covered rock, sues resort? Skier skis into snow covered stream - sues resort?
How about skier pays small fortune in legal fees on hopeless lawsuit, sues parents for raising an idiot?

On the other hand maybe he had to sue or his insurance wouldn't pay up.

I got a core shot from that rock that wasn't suitably buried, BUY ME NEW SKIS you careless resort!

 

[François Pugh]

That said, I'd be pretty grumpy about someone cutting trees in a glade and leaving 6' stumps on general principle. If the intent is for the area to be skiable, any cut vegetation should be cut as close to flush as possible.

I agree. If you are going to cut a tree, don't leave a 6' stump. However, I fully expect 6' stumps to be left.

 

[Ulmerhutte]

In the US, off-piste but within a ski area boundary is absolutely controlled unless it is a closed area marked by signs and/or rope/fencing. That doesn't mean that every obstacle is marked though.

My bad. I am not familiar with USA skiing; I spend my northern winters in St Anton (well, I did before covid screwed the pooch).

In Austria, off-piste starts from outside the piste edge markers, even if you are just metres away. I will leave an explanation of the rather ambiguous “routes”, or “itineraries” (as the Brit call them) for another time.

You are on your own in the off-piste: nothing is marked and there is no avi control, unless it is required to secure a piste below. There are almost never any ropes or gates to highlight that you are leaving a ski area boundary: the concept does not really exist. You will however occasionally see signs that warn you that you are leaving a secured area on the edge of pistes at points used regularly for exit into the off-piste/backcountr.

Rescue requires an expensive heli ride, assuming you are able to contact SAR - some valleys have no phone reception. You are expected to know what you are doing, be suitably equipped, and accepting of the risks/consequences.

 

[Tricia]

I tore my second ACL hitting something solid under the snow (the tip of the ski hit it square and stopped). It never occured to me to attribute it to anything but bad luck. (The resulting injury I partially attribute to the fact that I was standing with straight knees since I was approaching a flat and "not really skiing".)

Maybe if it had been a serious injury I'd feel different.

Were you able to ski until last chair?

 

[Tricia]

My bad. I am not familiar with USA skiing; I spend my northern winters in St Anton (well, I did before covid screwed the pooch).

In Austria, off-piste starts from outside the piste edge markers, even if you are just metres away. I will leave an explanation of the rather ambiguous “routes”, or “itineraries” (as the Brit call them) for another time.

You are on your own in the off-piste: nothing is marked and there is no avi control, unless it is required to secure a piste below. There are almost never any ropes or gates to highlight that you are leaving a ski area boundary: the concept does not really exist. You will however occasionally see signs that warn you that you are leaving a secured area on the edge of pistes at points used regularly for exit into the off-piste/backcountr.

Rescue requires an expensive heli ride, assuming you are able to contact SAR - some valleys have no phone reception. You are expected to know what you are doing, be suitably equipped, and accepting of the risks/consequences.

This may be why the topic was brought up a while back about skiing in Europe being more dangerous. Its not that the terrain is any more dangerous, but because the US resorts mark as many obstacles as possible, due to lawsuits like this one.

 

[mdf]

Were you able to ski until last chair?

The hardest part was stepping back into the ski after the gondola ride to get back up the slope our condo was on.

 

[Tricia]

The hardest part was stepping back into the ski after the gondola ride to get back up the slope our condo was on.

You didn't answer my question. Did you ski to last chair? It is one of the things you're known for. I'd hate to think you'd miss last chair due to a pesky stump.

 

[mdf]

You didn't answer my question. Did you ski to last chair? It is one of the things you're known for. I'd hate to think you'd miss last chair due to a pesky stump.

True enough....
I have to admit I didn't purposely ski till last chair, but since the accident happened late in the afternoon on the other side of the resort, it was very close to last chair by the time I made it home.

I definitely skied till last chair after my first ACL rupture, though I took a fairly long break before I went back out.

 

[Mister Tea]

My initial impression is that if this stump had been in the middle of a beginner trail, a claim would be reasonable.

I
At the risk of writing something self-contradictory, If it were in the middle of *any* groomed trail, it wouldn't have been there.

Pisten Bullys are expensive. Don't want to hit an invisible tree stump just below the surface. It's in the ski area's direct financial interest (ignoring lawsuits) to remove stumps on anything that might ever see a groomer.