Friday, February 28, 2014

The Birth of Ski Resort Uphill Policies

Today, Ski, Esq. is pleased to announce a special guest column by distinguished attorney Steven M. Grossman, Esq. Steve is a graduate of Cornell University and UVA Law School and is an associate at the firm of Sullivan and Cromwell in New York City.

As more skiers venture into the backcountry and sales of alpine touring equipment continue to rise, new challenges face ski resorts around the country.  Media coverage typically focuses on the increased pressure these skiers are placing on avalanche-prone terrain and the danger this poses to backcountry travelers.  However, increased uphill activity has also changed the relationship between skiers and resorts. 

There have always been a few passionate individuals willing to trek up the mountain to catch a few fresh turns at sunrise at their favorite local mountain.  However, it is increasingly common to see skiers zigzagging their way up the side of a resort before the lifts start to turn in the morning.  These skiers may come in contact with patrollers in what is traditionally a time for resorts to complete avalanche control work and other pre-opening safety checks.  As a result, resorts should consider enacting a comprehensive policy to address the potential risks associated with uphill travel. 

For resorts operating on public land, a wholesale ban of uphill traffic is not an option.  These resorts operate on U.S. Forest Service land under permits that require them to maintain public access.  But these permits do allow the resorts to place some restrictions on that access.  Where avalanche danger is a concern, resorts have been able to prohibit uphill traffic during resort operating dates for safety reasons. 

However, a more nuanced approach is necessary for resorts that cannot legitimately make avalanche danger claims.  When a skier purchases a lift ticket in the United States, they are consenting to a waiver (usually on the back of the ticket itself).  Such waivers typically release the resort from liability for any injuries occurring as result of the "inherent risks" of the sport.  Allowing skiers to use resort facilities without such a waiver presents an unnecessary risk for resort owners.  Many resorts allow uphill traffic only with the purchase of an uphill access pass. Such a pass, and the restrictions that come with it, give a resort greater control over the type of uphill activity on their mountain.  In Vermont, Killington resort became one of the most prominent resorts to have such a policy when it recently unveiled its Uphill Travel Program.

Uphill access passes provide significant benefits for both skiers and for resorts.  For resorts, uphill passes enable the resort to reduce its liability by incorporating waivers similar to those found on the back of a standard lift ticket or season pass.  Additionally, such passes allow the resort to establish a code of conduct for uphill travelers which minimizes interference with normal operations.  Lastly, although these passes are generally quite affordable, their sale provides some additional income for a resort.   

Skiers should embrace such policies because they provide a level of legitimacy to the activity and assure skiers that they will not be met with questions or resistance when they arrive before sunrise to catch a few morning turns at their local hill.