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| Lower Ovation at Killington |
The Burlington Free Press has
reported that
Vermont's
Killington ski resort has settled a case in which a plaintiff alleged that the
resort was negligent in maintaining and marking its expert Ovation trail and
that he sustained injuries during a ski patrol rescue after his initial fall. According to the report,
the case settled before the second day of trial could commence early this
morning in the U.S. District Court in Rutland.
The plaintiff, Alfred Rocks of Egg Harbor, N.J., was skiing the resort's Ovation trail when he alleged he hit an unmarked bare spot and tumbled into rocks below, severely injuring his leg. For those unfamiliar with Killington, Ovation is one of the resort's signature runs. It is the steepest trail on the mountain and often covered in moguls, as shown above. Its steepness means it is frequently scraped down to a firm hardpack, making it a challenging run even for experienced skiers. Anyone who fell would likely tumble or slide quite a long way before coming to rest. In light of the foregoing, it is not surprising to Ski, Esq. that a snowmobile could overturn on the trail.
The plaintiff, Alfred Rocks of Egg Harbor, N.J., was skiing the resort's Ovation trail when he alleged he hit an unmarked bare spot and tumbled into rocks below, severely injuring his leg. For those unfamiliar with Killington, Ovation is one of the resort's signature runs. It is the steepest trail on the mountain and often covered in moguls, as shown above. Its steepness means it is frequently scraped down to a firm hardpack, making it a challenging run even for experienced skiers. Anyone who fell would likely tumble or slide quite a long way before coming to rest. In light of the foregoing, it is not surprising to Ski, Esq. that a snowmobile could overturn on the trail.
Rocks alleged two cause of action: (1) that the resort was negligent in its maintenance and marking of the Ovation trail; and (2) that ski patrol acted with gross negligence in rescuing him.
The first count is normally a nonstarter. Almost every ski state has a ski safety act which shields resorts for liability where a skier is injured from an "inherent risk" of skiing. This blog is full of articles discussing cases decided in favor of a resort based on the broad statutory protections provided by state legislators to ski resort operators. In short, it is exceedingly difficult to recover against a ski resort for an accident that happens in the normal course of skiing down a hill. Vermont is no different. The failure to warn portion of Rocks' argument is more novel, but bare spots still fall within the inherent risks of skiing. The first count was likely to be unsuccessful. What makes Rocks' lawsuit more interesting is the second cause of action relating to negligent rescue.
Rocks alleges that he sustained injuries during Ski Patrol's rescue. Once the resort undertook the rescue, tort law requires the the rescuing party to exercise reasonable care in conducting that rescue. Killington's defense to this allegation was that Rock could not prove his injury occurred when the sled flipped over as opposed to when he fell on the trail. However, the resort's willingness to settle the case reveals two things.
First, the plaintiff has a reasonable chance of success on the merits. While Ski, Esq. believes it is likely that the resort would have prevailed on the first count of the complaint, the negligent rescue cause of action might have been decided in Rocks' favor. Assuming Rocks could demonstrate that he suffered an injury when the sled flipped, a jury could well have found Killington acted with negligence in its rescue. Though it must be noted that under Vermont law, ski resorts and rescuers are exempted from liability except when they act with gross negligence, a higher standard than simple negligence. Vt. St. Ann. 12 § 1038. The resort had a viable defense in that the bad conditions on the trail that day made the rescue far more difficult than normal. The patroller might have been exercising reasonable care and yet still had the snowmobile flip over. Either way, there was a reasonable chance that a jury might have found in Rocks' favor.
Second, Killington did not want to set a precedent with regard to negligent rescues by ski patrol. A quick search of Vermont case law showed no prior decisions regarding facts which would give rise to an imposition of liability for gross negligence during a rescue. In light of the fact that the resort likely believed there to be at least a fair chance it might lose, it almost certainly believed it better not to set a precedent which could be used against it in future cases.
The terms of the settlement have not been disclosed.
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