We live in a litigious society, and I’m not sure it’s good for us.
[I know this is a bit rich coming from a lawyer, but bear with me for a moment].
Earlier this month, the Colorado Supreme Court ruled that avalanches are an “inherent risk” in skiing, and that if an avalanche occurs while a person is in-bounds at a ski resort, and that person dies, the ski resort is not liable.
“Inherent risk” is one of those legal phrases everyone loves to toss around, but nobody knows precisely what it means. Generally, it stands for the idea that there are certain activities that, by their very nature, are more dangerous than others, and participant beware. It’s a vague attempt to instill personal responsibility into a culture that has tried to shirk it. If you go sky-diving, you run the risk of a variety of accidents, and that danger is a part of the thrill. If you go to a foreign country and eat the local raw seafood – you know there’s a better than average chance that you might not be leaving your hotel room for the next 24 hours. If you take a few shots of Jameson and chug a couple of Buds, and then get in your car to drive home, you know there’s the chance of a DUI.
We all make choices; some good, some regrettable, some surprising. In the end, we’re left to deal with the ramifications of our own actions. As rational adults, the law presumes that we are capable of weighing the pros and cons of our actions – perhaps even a cost-benefit analysis – and then it seeks to hold us accountable to those decisions.
It’s no different in the ski liability case. The petitioner in this case, the wife of skier Christopher Norris who died in an avalanche at Winter Park on January 22, 2012, argued that “although Winter Park knew that avalanches were likely to occur in the area where her husband was skiing that day, it neither warned skiers about this risk nor closed the area.” The Ski Safety Act of 1979 defines what the “inherent risks” of skiing are, and although avalanches are not explicitly stated as a risk, the statutes includes “snow conditions as they exist or may change.” 33-44-103(3.5), C.R.S. (2015). In a 5-2 decision, the Colorado Supreme Court found that avalanches fall within that “snow conditions as they exist or may change” category, and that the ski resort is not liable for Mr. Norris’s death.
So, the precedent has been set, and it now absolves ski resorts in Colorado from any liability for deaths caused by avalanches on their terrain. Whether or not you think this is a good thing depends on your point of view. On the one hand, the deceased’s wife faced expensive funeral costs, the loss of her husband, and her husband’s income. Shouldn’t she get help from the ski resort that knew of the avalanche risks and did nothing to warn its patrons?
Or, don’t we all know in the back of our minds that skiing is an inherently risky sport? We make the decision to go skiing, we make the decision of what gear to wear and carry, what runs to take, how long to be out, when to go up, and so forth. The thrill we get from flying down the mountain stems in part from the known risk, but we decide the reward is greater.
Accidents happen, and skiers know that all too well. The ski resort didn’t cause the avalanche, and they didn’t cause Mr. Norris’s death. Sometimes we sue because we are looking for someone to blame, to hold accountable, to make sense of our loss or tragedy.
But is it good for our society to litigate an accident? I would argue no. Sometimes accidents are just that – the unintended (and perhaps unforeseen) consequences of our actions.