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Safety

WYOMING BECOMES 29TH STATE

WITH NEW SKI SAFETY STATUTE

BY DAVE BYRD, NSAA DIRECTOR OF RISK & REGULATORY AFFAIRS

THANKS TO AN INCREDIBLE OUTREACH effort by the 10 ski when there was no evidence of liability—given the high legal
areas in Wyoming, it recently became the 29th state to adopt defense costs of taking a lawsuit to trial.
ski safety legislation, helping underscore the inherent risks of The bill was partially modeled on Colorado’s Ski Safety
skiing and snowboarding and also helping prevent needless Act, albeit with a few significant differences. The Wyoming
and potentially devastating litigation against ski areas. statute states that a skier “expressly accepts and assumes the
On March 9, Republican Governor Matt Mead signed inherent risks of skiing and is legally responsible for damage,
the Wyoming Ski Safety Act into law, which establishes a injury, or death to himself or other persons.” Wyoming’s new
defined list of inherent risks involved with skiing and snow- bill also defines the “inherent risks” of skiing or boarding,
boarding, immunizes ski areas from claims resulting from with a similar laundry list of typical items, such as collisions
these risks, and places operational requirements on ski areas with natural or man-made objects (including resort infra-
to improve mountain safety. structure), changing snow or weather conditions, surface or
Wyoming becomes the latest state to have specific leg- subsurface conditions, and variations in terrain, including
islation providing certain protections for ski areas from the freestyle terrain and jumps such as terrain parks.
inherent risks of the sport, following recent statute adoptions Moreover, during testimony on the proposed bill, legis-
in Wisconsin (2012) and Virginia (2012). Interestingly, the lators agreed in committee that surface and subsurface con-
great ski state of Georgia, which used to have one ski area (it ditions, variations in terrain, and weather conditions would
closed in 2010), also has similar ski safety legislation! Two extend to avalanches, snow slides, and snow immersions as
other key ski states, Minnesota and California, have yet to being within the inherent risks of skiing, following the rea-
adopt similar ski safety legislation. For California, the exist- soning of the recent Colorado Supreme Court ruling in
ing body of case law that has been developed over the last Fleury v. Intrawest, which held that avalanches are part of the
three decades in ski and other recreation cases provides a inherent risks of skiing under the Colorado statute.
helpful legal climate for recreation providers in the state. But Two key provisions in Wyoming’s new legislation will
for Minnesota—despite three recent attempts by the 20 ski protect ski areas in that state from lawsuits resulting from
areas in the state to pass legislation in the last five years—the injuries while jumping in terrain parks as well as claims from
trial attorneys have been particularly effective at preventing skier-skier collisions, which are also defined as inherent risks
such legislation from passing. in the sport. Notably, the Wyoming legislature intention-
For decades, claims against Wyoming ski areas have ally defined “inherent risks” as those that are “part of” the
been covered by the state’s Recreational Safety Act (RSA), sport of skiing rather than “integral to” the sport—language
which theoretically governs claims for injuries resulting from found in other state statutes that has caused confusion and
the inherent risks of a wide variety of recreational activities, led to problems trying to figure out what is, or is not, “inte-
including skiing, rafting, horseback riding, swimming, and gral” to the sport of skiing.
so on. The problem, however, is that the existing verbiage Helpfully, the new statute also states that skiers and rid-
in Wyoming’s RSA is a very generic and abbreviated (about ers are presumed to have seen, read, and understood resort
two paragraphs), and it does not define what constitutes an signage. This is somewhat unique to have this legislated
“inherent risk” for any recreational activity. directly within a statute. Most states, even non-ski states,
This forces state and federal judges to effectively “punt” typically recognize a legal presumption under case law that
on claims against ski areas and other recreational providers, guests are presumed to have to seen and/or read generally
leaving the issue up to a jury as to what constitutes an inher- accessible warnings or safety signage. But Wyoming’s new
ent risk in a particular activity. In short, Wyoming ski areas law provides the benefit of this being within the statute itself.
typically have been unable to obtain summary judgment It is likely that if issues of signage or warnings is an element
to truncate the litigation process, giving plaintiffs’ attor- of a lawsuit, attorneys defending ski areas may be able to use
neys significant leverage to force favorable settlements—even this provision for critical jury verdict forms at trial. Because

6 | NSAA JOURNAL | SUMMER 2017