Is careening down the slope a crime?

Colorado judge, in dismissing suit against a speeding skier, raisesquestions of liability.

By , Special to The Christian Science Monitor

"Ski at your own risk" is the essence of a warning posted at all ski resorts and printed on every lift ticket sold in Colorado.

Now, a court ruling in the heart of ski country is punctuating that message with an exclamation point. The finding - that a fast-traveling skier was not at fault in the death of a man he struck on the slopes - may soon have skiers and snowboarders of all abilities looking over their shoulders. As a result, everyone from lawyers to resort owners is reexamining whether out-of-control skiing should be considered a crime.

"There is no question death is possible, as was tragically illustrated in this case," Judge David Lass wrote in his opinion, throwing out charges of reckless manslaughter and negligent homicide against a skier who caused a fatal accident on Vail Mountain in 1997. But "the court does not find a substantial risk of death in the event of collision."

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In essence, he ruled, it was just an accident.

The decision has surprised many here. "The judge got it wrong on this one. I think it's kind of frightening," says Jim Chalat, a Denver trial lawyer who specializes in ski litigation. "It means that the irresponsible skier might ski with impunity."

Countertrend?

Many believe the case will have broad impact. Prior to it, no court had dismissed charges against a skier accused of causing injury or death to another through recklessness. In fact, in recent years, there have been a number of successful prosecutions and plea agreements in similar cases. In other states, skiers responsible for collisions have been prosecuted on comparable charges.

"It wasn't as if we were going out on a limb with our theory of prosecution," says Michael Goodbee, district attorney for the Fifth Judicial District of Colorado, where the case originated. "This is a serious case," he says, adding that he is inclined to appeal to the state Supreme Court. Although the ruling isn't binding statewide, it does apply to all lower courts in the ski-resort-dense Fifth Judicial District.

For Mr. Goodbee, the ruling sets a dangerous precedent: "Simply strapping on a pair of skis doesn't give you carte blanche to commit crimes. A successful prosecution in this case would send a message of personal responsibility to skiers on the slopes," he says. "That's a message that needs to be disseminated."

Yet Colorado law is explicit about the fact that skiing is a dangerous sport. A warnings on every lift ticket sold states: "The user of this pass agrees that using a ski area, including its lifts, for any purpose can be hazardous and the user assumes all risks."

"Skiing is a high-energy participatory sport that has some inherent risks," says Barbara Jennings, spokeswoman for Colorado Ski Country USA, an industry association in Denver.

Ski-resort liability

Nationwide, nearly every state with a significant ski industry has a Ski Safety Act, the chief objective of which is to protect ski areas from liability for accidents occurring due to the "inherent danger or risk" of skiing.

Colorado's law, enacted in 1990, is one of the most sweeping in this regard, stating: "No skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing." Collision is considered one of those risks.

The law has made civil claims against ski areas so difficult to win that Colorado personal-injury lawyers term it the "Ski Area Immunity Act," says Glenn Gordon, a Boulder trial attorney who represents ski-accident victims.

Although such laws do not prevent skiers from suing others who collide into them, unless the at-fault skier has liability insurance a civil judgment is usually meaningless. In all likelihood, Mr. Gordon adds, a college-age ski bum sharing an apartment with three roommates is not going to be able to fund a settlement.

The ski industry, meanwhile, finds itself in a tight spot: Resorts want to provide a safe environment for family recreation, but they cannot control the behavior of everyone they sell a lift ticket to, says David Cleary in Rutland, Vt., special counsel to the National Ski Areas Association.

The Responsibility Code

Ski areas do their part to help prevent accidents, Mr. Cleary says, by educating skiers and snowboarders and by enforcing the Responsibility Code - which outlines the basic rules of slope safety and is displayed prominently at every ski area (it's even printed on soft-drink cups).

Ski patrollers routinely strip lift tickets from participants who violate the code. But, like traffic cops, ski patrollers can't be everywhere.

For that matter, "it's impossible for skiers to be in control all the time," he says. "Skiing involves speed." For the same reason, Cleary does not believe skiing too fast should be a crime.

But should there be criminal consequences for recklessness? That question comes down to one of intent, he says: Is there evidence of a willful disregard for the safety of others? If not, a criminal case is hard to make, he says, adding that "many courts have held that simple collisions are a part of the sport."

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