Previous blogs on this website have discussed lawsuits against ski areas in New Hampshire. The bottom line: it is difficult for injured skiers to succeed in claims against ski resorts.

This is true for two reasons. One is that ski areas increasingly use liability releases (aka exculpatory contracts or waivers) to limit their liability. These liability waivers can be effective if properly drafted.

Secondly, ski areas have extensive protections under state statutory law. RSA 225-A:24, part of the so-called “Ski Statute,” provides that ski areas are not legally responsible for injuries sustained due to the “inherent risks” of skiing. Courts have interpreted this statute broadly to cover a wide range of scenarios.

If you have been injured while skiing or snowboarding and have questions about the Ski Statute or liability releases, you should consult with an experienced attorney for an evaluation of your case. Each case is unique and these legal barriers must be analyzed on a case-by-case basis. I offer a free consultation in skiing-related matters; feel free to e-mail me at [email protected] to discuss.

THE SKI STATUTE – AN EXCEPTION FOR SKI LIFT INJURIES

One important exception to ski area protections are ski lift accidents. Ski lift-related injuries are not uncommon: 201 were reported to the New Hampshire Department of Safety between 2012 and 2015. 

This exception is somewhat hidden in RSA 225-A:25. The statute states:

Unless an operator of a passenger tramway is in violation of this chapter or the rules of the board, which violation is causal of the injury complained of, no action shall lie against any operator by any passenger or his or her representative; this prohibition shall not, however, prevent the maintenance of an action against an operator for negligent operation, construction, or maintenance of the passenger tramway itself.

The statute, therefore, does contain an immunity provision: that “no action shall lie against any operator by any passenger.” However, that provision is almost completely swallowed by its exceptions.

First, the statute expressly allows a claim if an operator violates the “rules of the board”: certain safety regulations promulgated by the Department of Safety. This is a judicially-recognized implied statutory cause of action. Adie v. Temple Mountain Ski Area, 108 N.H. 480, 483-84 (1968). Secondly, the statute allows lawsuits for negligent operation, construction, or maintenance of the ski lift (“passenger tramway”).

These two “exceptions” cover a variety of potential lift-related injuries. Most clearly, they encompass mechanical failures of the lift itself, like a chairlift collapse. The state safety regulations have certain detailed maintenance requirements, and an injured person could sue under RSA 225-A:25 if one of those violations caused him or her injury. Additionally, the injured person could separately bring a claim for negligent maintenance (or construction). Also included under these exceptions are injuries which occur due to lift operator error, such as failing to stop the lift in the event of a misload.

The bottom line: ski lifts are very different from skiing itself. A skier or snowboarder may be responsible for their own conduct on the ski slopes and expect certain inherent dangers that come with the fast-paced recreational activity. However, the skier does not have the same control on a chairlift. Pietruska v. Craigmeur Ski Area, 614 A.2d 639, 641 (N.J. Super. Ct. 1992) (“Improper operation of a ski lift is not an inherent risk of skiing since, with due care, it can be eliminated.”). The skier relies on the lift attendants and ski area to operate the lift in a safe manner and to maintain the lifts and related mechanisms in safe working order. For that reason, RSA 225-A:1 explicitly states that: “The primary responsibility for operation, construction, maintenance and inspection rests with the operators of such passenger tramway devices.”

LIABILITY WAIVERS IN SKI LIFT CASES

Even if a claim is not barred by the Ski Statute, a ski mountain may argue that it is protected by a liability waiver. That liability waiver may be in a season’s pass, or even on the back of a lift ticket. As explained in previous articles, these liability releases are often enforceable. One major exception is if the injured person is a child: multiple New Hampshire courts have held that a waiver signed by a parent on behalf of a child is unenforceable.     

Liability waivers may also be unenforceable where the defendant has caused injury due to violation of a safety statute. See, e.g., 57A Am. Jur. 2d Negligence, §55 (“[I]f an injury results from a violation of a statute that establishes a certain standard of conduct for the protection and benefit of the members of a class, an immunity contract or clause exculpating a defendant from liability for negligence is unenforceable as contrary to public policy.”).This is particularly true if the safety statute in question grants a private right of action to persons injured by a violation. See Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228, 133 (2013) (Kagan, J., dissenting); West Gate Village Ass’n v. Dubois, 145 N.H. 293 (2000) (“[A] party cannot in advance, make a valid promise that a statute founded in public policy shall be inoperative”).

Therefore, if a person is injured because of a violation of Department of Safety rules regulating ski lifts (which are very broad), they may be able to circumvent both RSA 225-A and a liability waiver. Again, each injury is different, and the law is complex. If you have suffered an injury at a ski area or ski resort, including an injury on a ski lift or tramway, contact an experienced attorney for an evaluation of your case. Welts, White & Fontaine, PC is the largest firm in Nashua and has experienced ski law attorneys. We offer free consultations and handle most personal injury claims on a contingency fee basis. Call us at (603) 883-0797 or contact us here.

Author: Israel F. Piedra

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.