Ski Resort Liability: An Overview
By Brian P. Heermance
January 7, 2008
While those who ski and snowboard generally assume the risk for many personal injuries that they may
incur, ski resort operators cannot always escape liability.
In Farone v. Hunter Mountain Ski Bowl Inc., decided on Nov. 1, 2007, the New York Supreme Court, New
York County, denied defendant Hunter Mountain's motion for summary judgment seeking dismissal of
plaintiff's complaint on the basis that he had assumed the risk of injury.
Background
The New York Court of Appeals has distinguished between cases involving obvious risks and those with
more obscure risks. Those with obvious risks are often easily dismissed, leaving the resort free from
liability. The court has held that one who participates in sports accepts the dangers inherent in their
participation, "so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his
antagonist or a spectator at a ball game the chance of contact with a ball."1 The facility or operator is
relieved of liability if the participant is aware of the risks, appreciates the nature of those risks, and
voluntarily assumes the risks.
Ski resort operators are not responsible for altering or eliminating the inherent risks of skiing. Thus, many
times injured skiers are deemed to have accepted the risk inherent in skiing, absolving the resort from
liability. In Kaufman v. Hunter Mountain Ski Bowl, Inc., a case in which a skier was injured in a collision
with a member of the ski patrol, the court held that "voluntary participants in downhill skiing assume the
inherent risks of personal injury caused by, among other things, other persons using the facilities."2
In Bruno v. Hunter Mountain Ski Bowl, Inc.,3 the plaintiff skier was injured while momentarily blinded as
she passed through the plume of a snowmaking machine and hit a rock wall. The court held that because
she was aware of the use of snowmaking equipment on the trail, and the fact that the plume generated by
the machines could impair her vision, she had assumed the risk which caused her injuries. In Lapinski v.
Hunter Mountain Ski Bowl, Inc.,4 a skier was rendered a paraplegic when he inadvertently veered off an
intermediate trail and onto an expert trail, sliding into a tree. The court held that in addition to assuming
the risks inherent in skiing, the configuration of the trail was not the proximate cause of plaintiff's injury.
The skier should have heeded the warning signs to avoid the expert trail, which were deemed adequate.
Pertinent Statutes
Both the New York General Obligations Laws (GOL) and the New York Codes, Rules and Regulations
(NYCRR) provide duties and responsibilities of skiers and ski area operators. GOL §18-106 lists duties of
ski area operators with respect to inherent risks, any violation of which can result in liability for the ski
resort. Notably, ski area operators must post a conspicuous "Warning to Skiers" relative to the inherent
risks of skiing at every point of sale or distribution of lift tickets. Ski area operators must also notify skiers
and passengers that GOL §18-106 prescribes certain duties for skiers, and copies of this article must be
made available free of charge. Ski instruction and education must also be made available at a reasonable
price, and skiers shall be entitled to a refund for any unused lift ticket if he or she is unwilling to ski due to
the inherent risks or duties imposed upon him or her. Accordingly, skiers are required to read and
understand the "Warning to Skiers" and to educate themselves to the sport, so as to reduce the risk of
injury.
GOL §18-103 imposes additional duties on ski area operators including: equipping trail maintenance
vehicles with warning devices, conspicuously posting signs informing skiers of their responsibilities,
holding employee training sessions at least once before the beginning of each season, conspicuously
marking the location of man-made obstructions (including snow-making equipment, electrical outlets,
timing equipment, stanchions, pipes, and storage areas), maintaining a centrally located information
board, inspecting each open trail at least twice a day and recording the results in an inspection log,
maintenance of appropriate signage, padding lift towers located within the boundaries of any ski trail, and
the presence of trained ski patrols. An additional list of responsibilities of ski area operators is provided in
NYCRR §54.5.
'Farone'
Farone is an example of a situation in which a ski resort operator may not be able to escape liability. In
Farone, plaintiff skier Egidio Farone sued defendants Hunter Mountain and Samuel Morris, a skier who
collided with Mr. Farone. The accident occurred when Mr. Farone stopped to rest on an expert trail,
slightly downhill from where it intersected an intermediate trail. Mr. Farone stopped near the right hand
side of a large orange sign that said "SLOW." He felt that this would be a safe location to rest, because
the sign indicated that it was a slow skiing area. However, the sign was covered with snow. Mr. Farone
was struck from behind by Mr. Morris, who testified that he did not see the SLOW sign prior to the
collision. Mr. Morris stated that, in trying to avoid skiers who cut in front of him, he lost his balance on an
icy patch, causing him to collide with Mr. Farone.
Mr. Farone alleged that Hunter Mountain "failed to make conditions as safe as they appeared to be,
including the failure to clear snow off the warning signs" and that it negligently sold alcohol to skiers
"knowing that . . . consumption adversely affects judgment and coordination . . . ."5
The court denied Hunter Mountain's motion for summary judgment, finding that a triable issue was raised
whether Hunter Mountain's failure to remove snow from the warning sign was a proximate cause of the
accident. The court noted the duty imposed on Hunter Mountain under GOL §18-103(2), requiring
operators to post signs in a location, and of such size and color so that they are likely to be easily seen by
skiers. Furthermore, the court examined Hunter Mountain's own operating procedures, requiring that ski
patrols assure all trail signage be clearly readable and free of snow and ice.
Conclusion
While ski-resort operators can often escape liability because patrons generally assume risks inherent in
the sport, Farone shows that they must still be careful to fully perform their duties or risk facing exposure
to civil liability.
Brian P. Heermance is a defense litigation/trial partner with Morrison Mahoney. He can be reached at
bheermance@morrisonmahoney.com.
Endnotes:
1. Morgan v. State of New York, 90 N.Y.2d 471, 482-83 (1997).
2. Kaufman v. Hunter Mountain Ski Bowl, 240 A.D.2d 371, 372 (2d Dept. 1997).
3. Bruno v. Hunter Mountain Ski Bowl, Inc., 248 A.D.2d 660 (2d Dept. 1998).
4. Lapinski v. Hunter Mountain Ski Bowl, Inc., 306 A.D.2d 320 (2d Dept. 2003).
5. The court found that the plaintiff did not present sufficient credible evidence that Mr. Morris was
alcohol-impaired at the time of the accident.