(CNN) — The recent deaths of two U.S. Ski Team members in an avalanche at a resort in the Austrian Alps have raised questions about the risks of these sudden snow slides. Since then, North America has settled into the skiing high season, with scores of skiers and snowboarders every day willingly participating in a sport fraught with risks of all kinds.
In our modern, safety-conscious world, we have gradually eliminated all things fun and dangerous.
But somehow, skiing is still around.
Skiing is incredibly dangerous, even without avalanches. You can careen into a tree, fly off a cliff or just take a nasty fall. Even the ski lifts look like creations of a Third World country, with their rickety safety bars and sagging cables. And then there are avalanches: a mass of snow, ice and rocks sliding rapidly down the mountainside. They are caused by natural conditions, such as new snowfall or sudden warming. But they differ from pure “Acts of God” in that humans can trigger avalanches as well. From a liability perspective, humans have no control over solar eclipses or meteor strikes; we have a modicum of control over avalanches.
In fact, government agencies use howitzers or explosives to cause them under controlled circumstances. Other times, backcountry skiers set them off accidentally, and with tragic results.
The question becomes: If avalanches are caused by both nature and humans alike, how do we decide when and if humans are liable for them — if ever?
Ski resort liability is a patchwork quilt in the United States. Many states with thriving ski industries have enacted legislation defining the duties of skiers and ski area operators. The general rule is that resorts are usually not liable for injuries because of risks inherent in the sport.
If you dare ski the double-black diamond trail and you reinjure your bum knee from high school football, then legally, the resort will likely avoid liability because you assumed that risk. Ski area operators still owe a duty, however, not to increase the risks of injury beyond those that are inherent in the sport — in other words, to do no act that harms skiers.
When it comes to avalanches, traditionally resorts have avoided liability on similar grounds, but that may change.
In a 2014 case, a majority of the Colorado Court of Appeals concluded that an avalanche fits within the definition of inherent dangers and risks of skiing. Part of the court’s logic essentially was: Because a cornice is within the risks of skiing (a cornice is an overhanging edge of snow on a ridge), an avalanche is like a cornice (in motion). But there was disagreement within this court.
One of the justices dissented and reached the opposite conclusion: avalanches are not within the statutorily-defined inherent ski risks, because it was clear from the statute that the Legislature did not intend to include avalanches within the class of skiing risks.
If the court holds resorts potentially liable for avalanches, it will not change the industry overnight, because avalanches are not everyday occurrences. The legal implications, on the other hand, will be significant. On one hand, skiers would argue that the resort is in the best position to avoid and warn about dangerous natural conditions, so they should be liable. The resorts would counter that holding anyone liable for that which is neither preventable nor foreseeable creates a dangerous precedent in American law.
For anyone who thinks the law is ever black and white, these are learned judges reading a statute word-for-word and disagreeing on its meaning. It’s safe to say then that reasonable minds could differ on the avalanche issue because they have already, at the same court in the same case. The Colorado Supreme Court has now taken up the issue.
Overall, a combination of common law principles and state legislation tends to protect ski mountain operators, which in turn protects the sport itself from extinction.
In that sense, skiing is a modern legal rarity. Typically, when Americans engage in a risky activity, it gets either legislated or sued out of existence.
The merry-go-round has vanished from the playground-scape. No, not the one with the horses on poles and the calliope music. I mean the cast-iron merry-go-round that kids would spin like a human centrifuge until bodies hurtled off the edge. Remember the teeter-totter? The teeter-totter is pretty much gone, though some modern fun-proof facsimile with safety springs and molded seats has taken its place.
Maybe my favorite example is the now-extinct Manta Ray kite tube. Apparently waterskiing wasn’t enough fun, so some genius invented an aerodynamic tube that took flight when pulled behind a boat. YouTube is festooned with videos of nudniks falling from the sky and crashing into the water. For this company, it was a case of, as Jay-Z might say, “Grand opening … grand closing.” As quickly as they appeared, kite tubes were swiftly outlawed at most lakes and reservoirs.
So how do we as a society decide which risky activities to allow and which activities to outlaw?
In 1947, federal appellate judge Learned Hand devised a negligence formula, which applied principles of calculus to legal concepts and facts to determine negligence: whether a legal duty of care was breached.
According to Hand, a person is negligent if: (1) The probability (“P”) of something bad happening; multiplied by (2) the gravity of the potential injury (“L”); is greater than (3) the burden (“B”) of taking adequate precautions. The famous formula is expressed as:
I am prepared to throw my mortarboard into the ring and join the ranks of academic-types with fancy formulas. Mine is: determining whether an activity will be deemed too risky to be legal in the United States. I give you:
H = history and traditions. It’s why alcohol is legal and marijuana isn’t. Alcohol is far more dangerous, but it’s been part of our customs at least since the Bible.
N = need. Cars kill tens of thousands of Americans every year, but we are utterly dependent on them. That’s why we are willing to look askance every day when vehicles routinely decapitate our citizens.
$ = money. The most important factor. Alcohol, tobacco, cars. Those three things are killing Americans every day, but the same firmly entrenched industries pump untold billions into our GDP. In many states, skiing is a significant industry and revenue stream for those tax coffers.
☺ = fun. Easily the least important factor. In fact, risky activities that are purely fun without any other factor are usually outlawed. Try arguing with a cop that you were speeding, but it was a blast, and you’ll see how minimal a factor fun is.
If these factors outweigh PL — still Hand’s probability and gravity of the harm — then the activity will be legal. If the likelihood and seriousness of harm is greater, then it will be outlawed.
And that’s why we continue to allow skiers to be exposed to massive risks, including avalanches. Skiing is dangerous, but it’s fun, profitable and it’s steeped in history. It’s not a necessary activity at all, but the other factors fill in the gaps.
The law has evolved to protect the industry from extinction by seriously limiting liability. Although that denies access to the courts by would-be plaintiffs, perhaps overall that’s a good thing. It reflects our social mores about some risky activities.
Make no mistake about it, if the merry-go-round and the seesaw had generated more tax revenue, they’d still be around. At least we still have skiing — for now.
Originally posted at http://www.cnn.com/2015/01/20/opinion/cevallos-skiing-avalanche-liability/index.html