Do I have a Valid Claim for Injuries?
Outdoor recreational sports, such as skiing and snowboarding, are one of the best parts of living in the Pacific Northwest. However, these types of activities come with inherent risks that you should be aware of before getting on the slopes. John Hopkins Medicine has reported that roughly 10 million Americans ski or snowboard each year in the United States, with approximately 600,000 injuries reported annually.
In Washington State, skiers and snowboarders impliedly assume the risk of the inherent dangers of participating in the sport, meaning an injured skier or snowboarder cannot sue the area owners or operators for any injuries caused by an inherent risk of skiing or snowboarding.
However, the implied assumption of risks by skiers and snowboarders does not preclude recovery for negligent acts by the area owners or operators which unduly enhance such risks. See Scott v. Pacific West Mountain, 119 Wash.2d 484 (1992) in which a ski school student was injured after losing control on a slalom racecourse after losing control and colliding with a fixed shed. Plaintiff alleged that the ski resort operators and ski school were negligent in placing the racecourse too close to the shed, thus unduly enhancing the risk of injury inherent in slalom racing. The Washington Supreme Court held that the implied assumption of risk was not a complete bar to recovery under these facts and remanded the case to the trial court to determine what, if any, liability the ski resort operators and ski school had for the Plaintiff’s injuries.
Although skiers and snowboarders do not impliedly assume the risk of negligence that unduly enhances the risk of an inherent injury, they still may release area owners and/or operators from any liability for negligence by signing an exculpatory clause. Have you ever read the small print on the back of a lift ticket, or that you must sign when purchasing an EPIC, IKON, or another type of season pass? This language almost always includes something along the lines of:
In consideration for allowing the Participant to participate in the Activity, I agree to the greatest extent permitted by law, to waive any and all claims against and to hold harmless, release, indemnify, and agree not to sue [Area Owners/Operators] for any injury, including death, loss, property damage or expenses, which I or Participant may suffer, arising out of Participant’s participation in the Activity, including but not limited to, those claims based on any released party’s alleged or actual negligence or breach of any contract and/or express or implied warranty and/or breach of any statutory or other duty of care…
This type of language is known as an “exculpatory clause.” Exculpatory clauses seek to protect ski area owners and operators from liability for their own negligence for injuries caused to a skier or snowboarder and are generally valid in Washington. However, exculpatory clauses cannot release a ski area owner or operator from liability for gross negligence. Determining what acts and/or omissions rise to the level of gross negligence is fact-specific. Therefore, you should always consult with an attorney to determine if your injury claim will survive any applicable exculpatory language.