Should ski resorts pay for avalanche injuries?

(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.

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Should jury take a field trip in Aaron Hernandez trial?

(CNN) — Jurors will get to see Aaron Hernandez’s trophy case when they visit his home during the former New England Patriots star’s murder trial, a judge ruled last week.

The Assistant District Attorney asked the court for permission to hide the trophy case, indicating the defense was trying to engage in “strategic manipulation” or impress the jury with trophies or medals.

The defense’s position was simple: That’s the way the house looked when the alleged victim was killed … and that’s how it should be shown.

Trophy cases aside, the rest of us defense attorneys and prosecutors must be wondering about a threshold issue:

What’s with the jury excursions in these kinds of cases? This doesn’t happen in most trials. Why the special treatment?

The decision whether to grant a “jury view” rests, as with many things, in the sound discretion of a trial judge. Courts, meaning judges, have the inherent power to allow a jury in either a civil or a criminal case to view places or objects outside the courtroom. Whether to permit a jury to conduct a view in a particular situation is a question committed to the trial court’s informed discretion.

Practically, what that likely means is, the judge just conducts a balancing test by weighing “what’s the point?” against “do I really feel like going out in the cold for a jury view?” This calculus usually yields the following result in a run-of-the-mill case: motion denied.

There is a growing bifurcation of the criminal trial system and it has nothing to do with race. It has nothing to do either with the wealth of the defendant. Simply put, there is a growing chasm between the way regular trials are conducted and the way high-profile trials are conducted.

Most murder trials do not conduct jury views of the murder scene. On one hand, parties should be able to request jury views where it would be important for a jury to view a scene in person, and photographs or video are inadequate substitutes.

Of course, on the other hand, establishing a defendant’s absolute right to a jury viewing would not work either, because parties would inevitably abuse the system; the courthouse would look like a yellow bus depot dispatching a fleet of juries on field trips: depressing, macabre field trips.

As gruesome as the facts are, the Hernandez case is not all that different from thousands of other murder prosecutions, except that it is a trial being covered by the media. Coverage means scrutiny. Scrutiny means the judge and the lawyers on either side will err on the side of caution. Erring on the side of caution means motions and requests will be considered that would not ordinarily be considered.

It’s a common misconception that only rich or famous defendants get this special consideration by the courts, but that’s not the case at all. Jodi Arias was an indigent, noncelebrity defendant, and Arizona squandered half its GDP considering every request from both sides in that case. Race really isn’t a factor either. George Zimmerman’s trial judge entertained many creative motions from both sides, and, contrary to initial reports, he is Latino.

High profile cases are terrific for both legal professionals and the general public, because parties are allowed to develop arguments they otherwise might not be allowed to make in an ordinary case. But it also gives the public a false impression: They don’t get a sense of the conveyor belt fashion in which the vast majority of criminal trials are conducted.

There are two tiers of justice emerging in the United States. You don’t need to be a celebrity defendant to have access to the subtle accommodations of a high-profile case.

You can be an unknown person, as long as you meet certain criteria. You have to be attractive (Jodi Arias or Scott Peterson). You have to inspire a controversial racial dialogue (George Zimmerman or Officer Darren Wilson). Or, as Hernandez or O.J. Simpson can tell us—having a career in the NFL doesn’t hurt either.

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Snakes and church vs. state

(CNN) — The recent death of the “snake-handling” pastor of a small Pentecostal church in Kentucky has raised an age-old conflict between church and state.

Jamie Coots, the pastor of the Full Gospel Tabernacle in Jesus Name in Middlesboro, Kentucky, died after being bitten on his right hand by a rattlesnake during a weekend church service where he was handling rattlesnakes willingly, it seems.

It has been reported that the late pastor’s son Cody Coots has continued the snake-handling tradition even after his father’s death.

People handle snakes at church for the same reason that people do lots of things: the Bible tells them so.

“And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover.”
Mark 16:17-18

This biblical passage is the genesis of serpent-handling for churches of the Holiness movement and the Pentecostal Church of God. For the faithful, those two verses are the authority for dancing with or passing around poisonous snakes during church services. Moreover, if bitten, they are likely to refuse medical treatment and rely upon God to heal them. There’s just one problem with this Biblical authority. Another authority, known as the Commonwealth of Kentucky.

In Kentucky, the practice is illegal.

Well, barely.

Under the applicable section KRS §437.060, any person who displays, handles or uses a snake in connection with any religious gathering shall be fined $50 to 100. Hardly a capital offense. The Kentucky legislature has sent a message: poisonous snake-handling is marginally illegal — but not as illegal as drugs or other crimes. The legislature’s assigned penalty appears to fall somewhere between a speeding ticket and an overdue library book.

This illegal practice persists so openly that a reality TV show flouts the law by filming a crime in progress. When a network has a series based primarily on filming people breaking the law in your state, it’s fair to say your law has lost some of its bite.

Ultimately, the issue is whether a state even has authority to regulate a practice that is primarily faith-based. The First Amendment to the United States Constitution declares “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The 14th Amendment, in turn, prohibits state legislatures from doing the same.

However, equally as formidable is the state’s constitutionally reserved “police power.” The name itself is a misnomer; the power is much more than your local police officer’s ability to make an arrest. The states’ traditional police power is their exclusive authority to regulate the public health, safety and morals of their residents.

Kentucky’s authority to outlaw snake-handling derives from this police power. The issue here is whether a state has the power to regulate religious activity; so the two constitutional authorities meet head-to-head.

In Jones v. City of Opelika, the Supreme Court addressed the conflict between freedom of religion and the police power of a state.

The court articulated an important but still misunderstood concept about religious freedom: the First Amendment embraces two distinct concepts — the freedom to believe and the freedom to act.

The first is absolute, but the second cannot be absolute. This makes sense.

Your thoughts alone, without speech or any action, are never criminal, even if of the most prurient, vile nature (at least for now — once Apple figures out an app to download your thoughts, they may someday be criminalized).

Your conduct, on the other hand, can be regulated for the protection of society. While citizens of the United States have an unlimited right to our religious beliefs, our right to act within those beliefs is tempered by a state’s duty to protect its citizens.

In Lawson v. Commonwealth, Kentucky’s Supreme Court considered a direct challenge to its snake-handling statute, using the guidance of the Supreme Court in the Jones case. The court held that the state could properly regulate the time, place and manner of religious exercise — such as passing snakes around at church — where the regulation is necessary for the safeguarding of the health, good order and comfort of the community.

Legally, Kentucky’s interest in protecting its residents outweighs a Kentuckian’s interest in celebrating his religion by handling rattlesnakes. According to the courts, the state can prohibit this practice.

But Kentucky still barely criminalizes the practice. Handling poisonous snakes is potentially more dangerous than other regularly prosecuted activities, such as drug use. Ask yourself: Would you rather your child be at a party where someone is passing around a water bong or a water moccasin?

Whatever the reason for not aggressively prosecuting the already-illegal practice, the fact is that it presents a known danger. Kentucky is one of the states that has seen fit to criminalize the practice, and it has the power to do so.

Unfortunately, if Kentucky doesn’t exercise its police power and impose stricter penalties, then the snakes will continue to impose their own punishment, which is often the death penalty.

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Should American Samoans be citizens?

(CNN) — The United States laid claim to these eastern islands of a South Pacific archipelago in 1900, and since that time, American Samoans have served in the U.S. military, including the wars in Iraq and Afghanistan.

Yet, those born in American Samoa receive passports declaring the holder is only a U.S. national, not a U.S. citizen. Noncitizen residents complain they are unable to vote in national elections or to work in jobs that require citizenship status. They also claim their birth status renders them ineligible for federal work-study programs in college, firearm permits and travel/immigration visas.

If they want to become citizens, American Samoans must relocate to another part of the United States to initiate the naturalization process, pay a $680 fee and be subjected to a moral character assessment, fingerprinting and the English/civics examination. Quite a process to become citizens of the nation that they consider their home.

American Samoans indeed have every right to be frustrated.

However, they have zero legal right to be U.S. citizens.

While it’s true that they would likely win their case in nearly every court of public opinion, they will ultimately lose in all the courts that count: actual courts of law. As with many things, when it comes to citizenship, little is guaranteed to residents of the Territories.

American Samoans have challenged federal laws and policy that decline to grant citizenship. The federal district court in the District of Columbia granted the government’s motion to dismiss the lawsuit, but the D.C. Circuit, the appellate court, is giving the American Samoans another chance to argue their case.

The last American frontier

The U.S. Territories are the last American frontier. They are as rugged as the Wild West and arguably as picturesque. Because of patchwork governance and varying isolation from the mainland, their outward appearances run the gamut: from teeming, vibrant quasi-state to desolated, sun-blasted rock, all scattered to the corners of the globe. ​

So what of the residents of these Territories? They are people like you or me. Are they U.S. citizens? Or — like the soil on which they live — are they considered another “possession” of the United States?

The short answer is: They are whatever Congress wants them to be. Whether that sounds fair or not, there’s little to dispute legally.

Territorial residents are not without any constitutional protections. The Supreme Court defined the extent to which the Constitution applies in Territories in a series of cases known to those of us who live or work in the Territories as the Insular Cases. These cases held that only specific “fundamental” constitutional rights are guaranteed to Territorial inhabitants.

The question then is whether the Citizenship Clause of the 14th Amendment applies to American Samoans. The Citizenship Clause provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

American Samoa is certainly “subject to the jurisdiction” of the United States. But residents must also be born “in the United States” for the constitutional right to attach. Unfortunately, for 14th Amendment citizenship purposes, the Territories have never been considered “in the United States.”

No federal court has ever recognized birthright citizenship as a guarantee in unincorporated Territories. In fact, federal courts have held on many occasions that unincorporated Territories are not included within the “United States” for purposes of the Citizenship Clause. Because these residents have no Constitutional, automatic right to citizenship, Congress can pick and choose how they become citizens. In fact, it has done just that: granting citizenship at birth to residents of other Territories.

For example, residents of Puerto Rico and the U.S. Virgin Islands are citizens if born there. But that citizenship does not flow from any constitutional right. Rather, Congress has chosen to pass independent legislation giving those residents citizenship.

Indeed, Justice Ruth Bader Ginsburg of the Supreme Court observed in one opinion that the only remaining noncitizen nationals are residents of American Samoa and Swains Island. When it comes to citizenship in the Territories, Congress can giveth or it can choose not to giveth, and the Constitution gives those residents no recourse.

Annexation and inconvenience?

The public policy is clear. Courts have been reluctant to force Congress to grant citizenship to persons merely because the U.S. has annexed their homeland. Courts and the legislature alike cite the practical inconvenience to the federal government.

The theory: If the practice of acquiring Territories required endowing the inhabitants with citizenship of the United States, this would be too great an inconvenience to the government. Then again, imagine the inconvenience to the newly annexed inhabitants who suddenly find themselves without citizenship anywhere.

American Samoans have fought in our armed services for over a century, so it feels fundamentally unfair that they get short shrift when it comes to citizenship. The problem is, fairness cannot overcome the language of the Constitution and centuries of legal precedent.

Fair or not, American Samoans will likely lose this legal battle, even though the Court of Appeals has given them a glimmer of hope and a second chance, of sorts. Citizenship for them is not a constitutional right; it cannot be grafted onto them by any court.

Only Congress can choose to grant citizenship to Territorial inhabitants.

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