Can people injured while skiing sue the ski resorts?

Skiing is one of the most exhilarating outdoor activities you can do in New England, but it's also one of the most dangerous. So far in March, two skiers have died after accidents at Wachusett Mountain in Massachusetts and Pats Peak in New Hampshire, which included a 15-year-old boy. GBH legal analyst and Northeastern law professor Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel to discuss the legal liability involved when people get injured on the slopes. This transcript has been lightly edited.

Jeremy Siegel: So, Daniel, we know you love to ski. We also know there are dangers associated with skiing. There are also lots of legal issues, another one of your passions. When it comes to accidents on the slopes, to what extent might an injured skier, or a skier's family, be able to sue a resort and receive monetary compensation after an accident or something like it happens?

Daniel Medwed: So it varies considerably from state to state. The law in Massachusetts is different from New Hampshire, which differs from that of Vermont. But the gist is basically the same. It's extremely difficult to sue a ski resort for your injuries. And here's why: the first barrier is basically contractual. When you buy that lift pass, that ski ticket, you essentially waive either implicitly or explicitly, your right to sue the mountain for certain risks inherent in the dangerous activity of downhill skiing. The second barrier is often baked into the law. It's part of our statutory framework. So, for instance, Massachusetts specifies in law what the duties of skiers are. This is actually part of our code. So, for instance, a skier shall maintain control of speed and course at all times, and a skier shall be presumed to know the range of their own ability on the slopes. So if you're going too fast, if you're out of control, if you're on that triple diamond black slope when you're really an intermediate skier, then you might be waiving any potential recourse for injuries against the mountain.

Paris Alston: Daniel, I wonder if there are any ways to overcome these obstacles. Because it can be tricky, right? In the case of a skier at Wachusett Mountain, he hit a tree. And in the one of the 15-year-old boy at Pats Peak, he hit a bump on a trail that he had gone down a few times before previously. So what if the resort is maybe doing a bad job of maintaining the trails, or there's something else that's playing a role in creating a hazardous condition for the skier? Could you file a lawsuit in those situations?

Medwed: Well, it really depends. I mean, these barriers are not insurmountable. It's not as if we give these ski mountains a complete free pass when it comes to liability. So there's a law in Massachusetts that's parallel to the duties of skiers, which imposes duties on ski resorts. Ski resorts have to conspicuously indicate the presence of snowmaking machines and other equipment to avert a potential crash. And also: they have to put flashing or rotating lights on emergency or maintenance vehicles. And I think a failure of the ski resort to comply, to breach that duty, could give rise to a personal injury action. But if that's the case, Paris and Jeremy, I think skiers really have to be mindful of another potential booby trap, which are there are often very strict statutes of limitations for skiers to bring an action against a ski resort. So in Massachusetts, you have to alert the mountain within 90 days, in writing by registered mail, about the accident and provide details about the accident or else you might waive your claim. And even then, you have to file your lawsuit within one year of the accident.

Siegel: Everything you've said over the past couple of minutes makes it sound like the law is essentially stacked in favor of resorts.

Medwed: Yeah, I think that's right. So on the one hand, I suppose the rationale here is that if there were not barriers on the liability for ski resorts, it would be too cost-prohibitive to ever operate a ski slope. The cost of insurance alone would be astronomical. And the only way you could make a go of it would be by passing the cost on to the consumer in the form of even higher lift tickets. We know how expensive they already are. On the other hand, I think it's a really fair question, and Jeremy, you allude to this, about whether the balance right now is tilted too far in favor of ski resorts.

Alston: So, Daniel, you just mentioned the challenges with filing lawsuits against ski resorts, but a lot of accidents are a result of collisions with other skiers, right? I mean, Gwyneth Paltrow has been on the stand in Utah this week talking about this exact thing. Sometimes it's due to careless behavior by other skiers. Are there any restrictions on suing your fellow skiers for causing injuries to you?

Medwed: Well, those actions are typically governed by general tort law or personal injury principles. So if another skier is negligent, maybe he or she has breached those duties of the skier that I mentioned, then perhaps that could give a basis for the injured party to file a tort action, a civil liability action, against that individual. So, for example, a bedrock principle of skiing, which is sometimes included in the law explicitly, is that a skier up the hill has an obligation to avoid a collision with a skier down the hill. It's a little bit like rear ending while driving, right? The person higher up bears the responsibility. And so if that skier does get into a collision with someone downhill, then conceivably that could give the basis for a private personal injury action.

Siegel: But I guess that's sort of dependent on one skier actually stopping after the accident. Like I'm thinking of hit and runs in cars. Sometimes there's a collision and then the uphill skier might just keep going. Are there any consequences for leaving the scene of a skiing accident?

Medwed: And regrettably, that happens all the time. And there are some consequences. So Massachusetts has a law on the books which says that you can get fined not less than $100 — It's not a huge fine but you can get fined — if you knowingly have an accident on a ski slope and then you depart without providing your personal identification or clearly identifying yourself to the person you've injured. Now, of course, that's dependent on someone actually catching you as you go down the mountain, some good Samaritan further down the slope. But there is a law on the books, at least in Massachusetts, to govern that.

Alston: So it sounds like that's mostly civil liability or personal injury actions. But say a good Samaritan does catch you. Could you ever be found guilty of a crime for injuring someone on a ski slope?

Medwed: There are cases out there, and they're relatively rare, of criminal actions that derive from accidents on ski slopes. There's a relatively famous case from Vail Resort in Colorado from about 25 years ago where a kid had had a little bit too much to drink, was hurtling down a mountain going on moguls. It was a bumpy slope. He had his arms out. He was sitting back on his skis to maximize his speed. And unfortunately, he got some air and hit somebody in the head with the tip of his ski. And the blunt force trauma caused a death. And ultimately, the Colorado Supreme Court said it was appropriate to charge him, to have the jury consider whether that was reckless manslaughter. Did he consciously disregard the substantial risk of death when he engaged in that type of reckless behavior? So it happens. It's relatively rare, but there are criminal actions that derive from ski accidents occasionally.