Other Skiers and “Assumption of Risk” in Oregon

A number of ski cases have applied the “assumption of risk” doctrine. Oregon has largely abandoned the doctrine in torts law, but carves out a rare exception for skiing where it does apply. It can be contrasted with everyday life in which people owe a legal duty to one another to use due care not to cause injuries. A failure to exercise that due care is called negligence. An accident is frequently the result of negligence—some degree of carelessness.

Assumption of Risk

The assumption of risk doctrine says that in certain sports there are conditions and conduct that would seem dangerous in everyday life, but are an intrinsic part of the sport. Skiing falls squarely into this category, because the elements involved such as speed, slipperiness, and natural hazards create a high risk of injury. Participants in skiing are presumed to know and accept the risks involved. One of those risks could be that a skier will ski carelessly and crash into a fellow skier. See ORS 30.970(1); 30.975.

The assumption of risk doctrine does not prevent all recovery for ski crash injuries. Courts often find that skiers assume the risk that other skiers will ski negligently at times, and in those cases the uphill skier who caused the crash will probably prevail. See, e.g., Cheong v. Antablin, 946 P.2d 817 (Cal. 1997) (holding that one skier may not sue another for simple negligence). The Cheong case did leave open the possibility that if another skier skis recklessly or sets out to intentionally injure another skier, there may be liability.

Intent to injure is exactly as it sounds. The uphill skier would have had to form a conscious desire to collide with another skier, or to cause injury in another way such as with an object like a ski pole.

Recklessness is slightly different, but perhaps easier to prove. It is a standard beyond negligence. In these cases, while the reckless skier would not have intended to cause injury to another, he or she would have consciously ignored the risk that their dangerous skiing might injure someone else.

Essentially, that means if a skier either knows that they are skiing dangerously or consciously disregards the risk of their dangerous skiing, acting without due care for others, they are liable for crashes and injuries they cause.

Fatalities

Fatalities can easily result from skier collisions. In a New Jersey case that went all the way to the New Jersey Supreme Court in 2013, a skier died after a snowboarder pummeled into him. Angland v. Mountain Creek Resort, Inc., __ A.2d __ (N.J. 2013). The snowboarder claimed to have been trying to avoid collision with an anonymous third skier, an alleged fact strongly disputed by the plaintiff’s estate. The collision sent the skier tumbling down the slope and he was found near a concrete bridge. He died of his injuries several days later, the hospital concluding that he suffered from a skull fracture inflicted by colliding with the bridge. His estate sued for wrongful death.

What was interesting in this case was the bridge as a factor in the injuries and death. The estate originally sued the ski area operator for violating the Ski Act in its failure to remove the bridge from the trail, make it safe, or provide adequate warnings to skiers. The operator added the snowboarder, Brownlee, as a third-party, suing for indemnity. The estate then added Brownlee in its own amended complaint alleging violations of duties between skiers in the Ski Act.

The court complained of little evidence existing as to the exact cause of the crash, but was seemingly persuaded by the estate’s expert witness as opposed to Brownlee’s “phantom skier” argument. The expert testified that in their opinion Brownlee skied recklessly when he:

  • Failed to keep a proper lookout
  • Reacted with a panicked stop
  • Made a sudden change of direction
  • Behaved in an unpredictable manner
  • Failed to readily respond to the unidentified person by taking evasive action in spite of having ample time and opportunity to do so

Those factors, in the court’s opinion, if believed by a jury would support a finding of recklessness.

The Angland court held that New Jersey’s Ski Safety Act outlined the duties and responsibilities between ski area operators and skiers, but did not apply to claims between skiers. The court found enough evidence of recklessness to remand for a jury trial, and it noted that either reckless or intentional misconduct by a skier would be enough to create a legal claim following a collision.

What the Angland case demonstrates is that many legal claims can arise from a single incident. If a collision with a skier is the sole cause of action, the sources of law are likely tort statutes and the common law. But if a man-made structure or a resort employee is also involved, the Ski Safety Act is implicated, along with the common law of respondeat superior and negligence. It can get complicated, but Richard Rizk will make sure all culpable parties are included in the lawsuit, and all legal claims are brought.

Oregon law does not protect reckless skiers, of which there could many.To determine what level of responsibility exists requires an examination of the facts by a skilled attorney. Richard Rizk knows the law and he knows skiing. If the skier who crashed into you acted intentionally or recklessly, we will help you seek the recovery you deserve.

Get the Help You Need With Your Ski Accident Case

Call Richard Rizk, Attorney at Law at (503) 245-5677 to schedule your free consultation.

Learn More About Oregon Ski Accidents