Unprecedented $60 Million Lawsuit Against Deer Valley

[Tricia]

A suit has been filed on behalf of Ed Bailey and his wife Penni Bailey regarding a ski accident at Deer Valley.

The suit claims that Deer Valley was preparing an area for a World Cup Freestyle event and had not posted warning signs after doing some prep work the night before. He suffered a brain injury and continues to have cognitive issues, memory loss and outbursts which have impacted his business and personal relationships. His firm Vision Capitol Partners has been hurt because the firm relies on him as the founder and manager of the firm.
See Park Record story here.
PRWeb link here
@Lorenzzo @cbk and any other Deer Valley folks - thoughts?

May need more popcorn while this unfolds.

 

[crgildart]

Ban twin tip skis!

 

[Tricia]

NPR news story
http://kpcw.org/post/deer-valley-resort-faces-60m-lawsuit

 

[michael]

My understanding is that DV had planned to post signs where the incident occurred but hadn't done so as they hadn't opened yet. Apparently the skier has a residence or something on the mountain and had come down prior to opening time.

 

[Tricia]

My understanding is that DV had planned to post signs where the incident occurred but hadn't done so as they hadn't opened yet. Apparently the skier has a residence or something on the mountain and had come down prior to opening time.

That is exactly the impression I got.
I have friends who are on Ski Patrol out here in Tahoe. They often arrive early to post warning signs prior to opening, and after the resort employees(mountain operations) finish grooming, and other things that they do.

Deer Valley may operate differently, but my guess is that its Ski Patrol that sets signage, not the mountain, and its done just prior to opening, making an assumption that people aren't on the slopes until they open.

 

[Lorenzzo]

I'm surprised it's only for $60M.. Fund managers with whom I'm familiar are making that in about a year. And they were investing in land as opposed to equities. Hedge funds invest in liquid assets like securities. So it doesn't sound to me as though he was really a hedge fund manager. I mean...what the hell...I invest I'm a hedge fund manager. Also, evidence of steps taken by a defendant to correct a condition that may or may not have involved negligence and injury is not admissible in court. If it did get to trial the attorneys would likely be called on the carpet for potential juror influence for publicizing those facts.

Further, why would the complaint set out there were shadows and flat light? That's an admission and calls into question the credentials of the attorneys which calls into question the validity of the claim. Generally the stronger the claim the better the attorneys it will attract. He crashed at a point where the slope normally and naturally substantially steepens. Skiing safely would have meant approaching that area at a rate of speed that would make it difficult to argue regrading worsened safety more than random moguls which appear in that area routinely and which he should have known being an expert who skied there regularly.

And they haphazardly named individual employees. That won't buy them sympathy in court only pressure applied towards DV which suggests they have no intention of going to court, also suggested by their having publicized DV's remedial measures.

So my analysis is ... as the buzz has been....this is just a typical shakedown type lawsuit by some of the gazillion ambulance chasers in this state with more zeroes than usual. If the defendant were VR I might feel differently.

 

[Philpug]

Great insight, @Lorenzzo.

 

[Jeff N]

The relevant portion of Utah's skier Safety Act: (as taken from the linked website)

_________________________________________________

§ 78B-4-402.DEFINITIONS
As used in this part:

(1) “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to:

(a) changing weather conditions;

(b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

(c) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(d) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;

(e) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;

(f) collisions with other skiers;

(g) participation in, or practicing or training for, competitions or special events; and

(h) the failure of a skier to ski within the skier’s own ability.

(2) “Injury” means any personal injury or property damage or loss.

(3) “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, nordic, freestyle, or other types of ski jumping, using skis, sled, tube, snowboard, or any other device.

(4) “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, freestyle, or other type of ski jumping, and snowboarding.

(5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.
_________________________________________________________

I just don't get it. I'm certainly sorry he got hurt, but it isn't the ski area's fault he charged into something blind and assumed he knew what he is getting into. Ski areas have no obligation to sign hazards (at least not in CO and I see no indication that is different in UT), but in this case, there isn't even a clear hazard, just a change in how the slope was groomed. Come on now.

I commute by motorcycle about 25 miles each way. Right now that commute runs through a construction project where they have realigned the road several times. If I sleepwalked my bike through the construction zone and sailed off the road because I expected it to be where it used to be, I would get laughed out of court, regardless of how bad I got hurt.

 

[nay]

^^^in Colorado there actually is an obligation to sign freestyle areas - that was the basis of Kumar v. Copper Mountain that the skier named "Celebrity Cornice" was a actually a freestyle area and should have been signed as such, and had it been signed, Kumar wouldn't have skied off it and suffered injuries. The ruling there was that skiers cannot create designations - the intent of the legislature was only for the ski area to do so. Here is Colorado in the section about signage:

(d) The ski area's extreme terrain shall be signed at the commonly used access designated with two black diamonds containing the letters "E" in one and "X" in the other in white and the words "extreme terrain". The ski area's specified freestyle terrain areas shall be designated with an orange oval.

So failure to sign the entrance to a freestyle area that resulted in injury in Colorado would be negligence. Since you've dug up Utah law, what do they say about signs for freestyle areas, if anything?

As a side note, anybody who wants to read a really good case about ski law, Kumar went to appeals court and is an authoritative opinion on a ski resort's control over what is what at their resort. Typically, they just have to sign it. The rest is on you. If they don't sign it...well...

(noting that this is Colorado law, but since most state's ski safety acts generally mimic Colorado's the case law here is generally informative IMO unless there are specific exceptions such as Montana excluding avalanches on marked trails from the inherent risks of skiing definition)

Edit: I just looked up Utah's law, and if what I found was the full code, they don't say anything about signs and include freestyle constructed terrain as an inherent risk of skiing. So we conclude no case.

But here is the problem: since the Utah Ski Safety Act does not mention signage at all except to post information about the law, a case like this would be a fight to include signage under a common law negligence standard and to have it fall outside of the scope of the act. And then you are into duty of care, and does a Utah resort have a duty of care to rope off of post signs about an under construction freestyle area?

That's where mentioning things like shadows, etc. matters, because to use an analogy if this construction area is also around a blind curve, then there should be some warning. The idea presumably is a skier who has been there a million times before is suddenly in a construction zone, and unlike Colorado's law, Utah's appears to put no burden on the skier to be in control, etc. So there is less to draw on here that the skier's own negligence contributed to his injury except that this can be established under some other common law precedent.

Either way, Utah's code is silent on signage, so the plaintiff is going try to draw in case law precedence from outside of skiing to establish a common law basis that duty of care was neglected. Are there other construction areas in general society we are aware of that aren't warning signed or roped off?

 

[Jack skis]

I'm sorry Ed got hurt, but if I could sue a ski area for every time I've gotten tangled up by shadows and flat light I'd never have gotten out of court. Of course my injuries were not so bad, and my lost earnings were limited to 10's of dollars at the most.

 

[crgildart]

Bottom line, had skier been following #1 of the code they wound have been able to avoid the obstacles, no signage required. They will try to get a jury trial and challenge everyone in the pool that knows anything about skiing. Funny thing is though that the code is simple enough for non skiers to understand most of the time.

 

[fatbob]

We all know it's BS but doesn't prevent shakedown lawsuits. Shame on him, brain injury or not - only one person responsible especially if skiing the area out of hours.

 

[Lorenzzo]

^^^... As one might figure from the above definition of Inherent risks of skiing, Utah isn't nearly as friendly a plaintiff state. Also, even the outlandish plaintiffs attorneys aren't claiming anything more than initial surface mods, as opposed to established freestyle terrain.

 

[skibob]

I don't know that I would call this a shakedown suit. They are likely to settle, but 93% of cases do, so that alone doesn't make.

There are two totally independent matters here.

The first is whether the resort was really not open yet. If that is true, then it will boil down to whether DV had appropriate and effective means of policing and denying access outside of hours. If he was on the mountain when he clearly knew he shouldn't be, the suit isn't likely to get far. If, on the other hand, this is allowed for homeowners, or routinely indulged w/ no effective deterrents, he could get far indeed.

Then there is the Utah skier's liability act. These acts are relatively new and untested. Judges tend to be conservative, and defendants tend to be reluctant to be a test case (plaintiffs on the other hand don't mind). They are written because all of those disclaimers you sign are virtually worthless in most states in the case of negligence by the resort. But the question is, how much can they strengthen them? Generally laws like this raise the standards for negligence. But they can't (and shouldn't) be eliminated altogether.

As far as my opinion goes, I say DV WAS negligent (and should pay) IF there was nothing effectively keeping him off the run. The situation sounds clearly dangerous and the warning signs obviously came too late. Could they have reasonably expected there to be no skier's there before they put up the signage?

 

[nay]

^^^... As one might figure from the above definition of Inherent risks of skiing, Utah isn't nearly as friendly a plaintiff state. Also, even the outlandish plaintiffs attorneys aren't claiming anything more than initial surface mods, as opposed to established freestyle terrain.

Utah may not be a plaintiff friendly state, but the legislature has left the door wide open for all kinds of lawsuits to be outside of the ski safety act. It provides zero guidance for what constitutes closed terrain, for example. The Utah statute also doesn't limit liability even in the case of negligence. In Colorado, that's limited to $1M unless you can find a basis for recovery outside of the statute, and it is only $250K for derivative lawsuits (those by 3rd parties such as family where the injured is deceased or otherwise unable to pursue a claim). In this case, the statue is silent on closed terrain, and nowhere does it say that failure to provide warning signs for a freestyle construction area is an inherent risk of skiing.

A conservative judicial approach would say that the Utah ski safety act was not intended by the Utah legislature to cover ski resort construction area closures, because it simply says nothing about them. Or you can argue that a freestyle area under construction is "snow and ice and it exists and may change", but nothing that follows that definition is in the class of "construction".

By comparison, here is what Colorado has to say about the duties of a ski area operator - fail to meet them and the operator is facing a negligence per se standard. Meet them and liability is excluded, although as has been hotly debated in the Vail Prima Cornice avalanche death, what is proper signing and therefore closure is not always clear. Look at Sections 2(e) and 4.

33-44-107. Duties of ski area operators - signs and notices required for skiers' information.

(1) Each ski area operator shall maintain a sign and marking system as set forth in this section in addition to that required by section 33-44-106. All signs required by this section shall be maintained so as to be readable and recognizable under conditions of ordinary visibility.

(2) A sign shall be placed in such a position as to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift depicting and explaining signs and symbols which the skier may encounter at the ski area as follows:

(a) The ski area's least difficult trails and slopes, designated by a green circle and the word "easiest";

(b) The ski area's most difficult trails and slopes, designated by a black diamond and the words "most difficult";

(c) The ski area's trails and slopes which have a degree of difficulty that falls between the green circle and the black diamond designation, designated by a blue square and the words "more difficult";

(d) The ski area's extreme terrain shall be signed at the commonly used access designated with two black diamonds containing the letters "E" in one and "X" in the other in white and the words "extreme terrain". The ski area's specified freestyle terrain areas shall be designated with an orange oval.

(e) Closed trails or slopes, designated by an octagonal-shaped sign with a red border around a white interior containing a black figure in the shape of a skier with a black band running diagonally across the sign from the upper right-hand side to the lower left-hand side and with the word "Closed" printed beneath the emblem.

(3) If applicable, a sign shall be placed at or near the loading point of each passenger tramway, as follows:

"WARNING: This lift services (most difficult) or (most difficult and more difficult) or (more difficult) slopes only."

(4) If a particular trail or slope or portion of a trail or slope is closed to the public by a ski area operator, such operator shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved. Alternatively, such a trail or slope or portion thereof may be closed with ropes or fences.

(5) The ski area operator shall place a sign at or near the beginning of each trail or slope, which sign shall contain the appropriate symbol of the relative degree of difficulty of that particular trail or slope as set forth by subsection (2) of this section. This requirement shall not apply to a slope or trail designated "easiest" which to a skier is substantially visible in its entirety under conditions of ordinary visibility prior to his beginning to ski the same.

(6) The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility. Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section. This requirement shall not apply in heavily wooded areas or other nonskiable terrain.

(7) The ski area operator shall mark hydrants, water pipes, and all other man-made structures on slopes and trails which are not readily visible to skiers under conditions of ordinary visibility from a distance of at least one hundred feet and shall adequately and appropriately cover such obstructions with a shock-absorbent material that will lessen injuries. Any type of marker shall be sufficient, including but not limited to wooden poles, flags, or signs, if the marker is visible from a distance of one hundred feet and if the marker itself does not constitute a serious hazard to skiers. Variations in steepness or terrain, whether natural or as a result of slope design or snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications, are not man-made structures, as that term is used in this article.

It doesn't really matter that it was only surface modifications. I don't see a difference between that and a construction site saying "well, we hadn't dug the hole yet." If an area should be closed because it is a safety hazard, and you do nothing to warn the public, and somebody gets hurt, you are sitting squarely in the definitional concept of negligence.

Now is it negligent to start constructing a freestyle area where a skier can enter without warning unless reasonable warning is established? Is there contributory negligence by the skier being there when he wasn't supposed to be? Utah apparently uses a modified comparative negligence standard. This seems to be a good enough writeup:

Contributory Negligence

The idea of contributory negligence is that an injured party should not be able to fully recover from the other party if they were also negligent. So if Mary runs a stop sign and gets hurt then she shouldn’t be able to get all of her damages covered by the other party because they also ran the stop sign. Originally in American law any level of contributory negligence kept you from recovering anything. So in the previous example if Mary was only 5% negligent she would be still not be able to recover anything from the other driver who was 95% negligent.

Comparative Negligence

Comparative negligence came about because of the harsh results produced by contributory negligence. The idea behind comparative negligence is that each party becomes liable for their portion of negligence in relation to the accident. So if Mary is driving and gets in an accident and she is 25% negligent and the other party was 75% negligent then she can still recover 75% of the damages from the other party. This requires the jury to estimate the percentage of negligence of each party which is obviously not an easy determination.

Utah’s Rule

In Utah and a number of other states, the modified comparative negligence rule is used. Under this framework an injured party cannot bring a claim against another party if their level of negligence is 50% or higher. So if their negligence is 49% or lower than it is the same as the comparative rule above, if it is 50% or above it is the same as the contributory negligence rule. This rule kind of mixes the previous rules and as always strives for more justice. Again the difficult comes in the juries determination of the percentage of negligence.

 

[Lorenzzo]

^^^ Bob... It's going to be hard for DV to rely on adequate means of controlling access because....he was there. But there's a factual question as to what the surface was like where the claimed resurfacing/platform was to have been created. I've heard it was not outside the scope of how they would normally handle that part of the trail and the pitch changes significantly where the accident took place. It would be an uphill climb to say a skier experienced at DV would not have been preparing for that transition.

I'm not seeing great legal expertise here. I doubt these guys would do well at trial and in fact they already mentioned they are open to a settlement. Way too early. So it sure looks like a classic slip and fall to me.

 

[Lorenzzo]

^^^ Nay...I'm not saying the case couldn't get to a jury but that they won't look to CO for interpretation, the judicial application hurdle is unlikely to be cleared given that it's uT and that the complexion thus far doesn't look credible. Even if CO did apply we're not talking about a race course or freestyle venue having been set up there at that point. The course was created afterwards as planned.

 

[Jeff N]

I don't know that I would call this a shakedown suit. They are likely to settle, but 93% of cases do, so that alone doesn't make.

There are two totally independent matters here.

The first is whether the resort was really not open yet. If that is true, then it will boil down to whether DV had appropriate and effective means of policing and denying access outside of hours. If he was on the mountain when he clearly knew he shouldn't be, the suit isn't likely to get far. If, on the other hand, this is allowed for homeowners, or routinely indulged w/ no effective deterrents, he could get far indeed.

Then there is the Utah skier's liability act. These acts are relatively new and untested. Judges tend to be conservative, and defendants tend to be reluctant to be a test case (plaintiffs on the other hand don't mind). They are written because all of those disclaimers you sign are virtually worthless in most states in the case of negligence by the resort. But the question is, how much can they strengthen them? Generally laws like this raise the standards for negligence. But they can't (and shouldn't) be eliminated altogether.

As far as my opinion goes, I say DV WAS negligent (and should pay) IF there was nothing effectively keeping him off the run. The situation sounds clearly dangerous and the warning signs obviously came too late. Could they have reasonably expected there to be no skier's there before they put up the signage?

I think the Colorado cases are instructive here.

On January 12, 2012, two skiers died in Colorado in inbounds avalanche events. One skier died skiing trees at Winter Park, one skier died on Prima Cornice at Vail. Both families sued.

Winter Park argued that avalanches are an inherent risk of the sport and moved to dismiss.
Vail argued that avalanches are an inherent risk to the sport, and the skier was on terrain that was closed ( One gate accessing the terrain was closed, one gate was open, and reality is that the skier triggered an avalanche from a point accessible from the open gate he entered).

Winter Parks motion to dismiss was granted. On appeal, the Colorado Supreme Court upheld that avalanches are an inherent risk by a 5-2 decision.
Vail's motion was not granted, because the open/closed aspect of the terrain and whether it was signed properly is being argued. They've spent 4 years playing this out because they made the argument more complicated, although the ruling in the Winter Park case has a good chance of ending the Vail lawsuit, which was stayed pending appeal of the WP case.

So, if snow conditions are an inherent risk, which is the same on both cases (more explicitly in this case as the word avalanche was not explicitly in Colorado's law), keeping it simple may pay. It boils down to who assumes the risk. The law says the skier assumes the risk for snow conditions, because such risks are inherent to skiing and can never be fully mitigated. Whether it was "dangerous" is irrelevant, because the danger was the skiers to evaluate and make decisions accordingly.

I'm far more familiar with the Colorado law, but most ski safety acts are very similar. In the Colorado case, it is pretty astonishing how little liability a ski area operator has. The ski area must sign slopes with a degree of difficulty. The ski area must sign "extreme terrain" and orange oval "freestyle terrain." The ski area should mark closed terrain, and note when a lift only served more/most difficult terrain. The ski area should mark boundaries. The ski area should mark snowmaking equipment "not readily visible" to skiers. Grooming equipment and snowmobiles should have a visible light. Grooming while the ski area is operating should be signed.

THAT IS THE EXTENT of responsibilities the ski area has under the law with regards to ski area slopes (most ski area liability is reserved for lift operation).

Ski areas have no obligation to mark hazards. Many ski areas in Colorado have severely cut down on their use of bamboo poles marking hazards.
Ski areas have no obligation to mitigate for avalanches.
Ski areas have no obligation to avoid skiers with snowmobile and grooming equipment. Getting hit with a snowmobile or run over by a groomer (on a signed slope) is an inherent risk.
Ski areas have no obligation to close "dangerous" terrain. Rules designate that they must mark closed terrain, not when they should close it. Wolf Creek only closes terrain for avalanche risk, not snow coverage (SOP is that all terrain under an operating lift is open). If you want to ski a scree field with a 6" base, it is your ass.
Ski areas have no obligation to pad lift towers or any other equipment. If it is visible, avoiding it is on you.
Ski areas have no obligation to groom, groom smoothly, avoid grooming slopes to have "'an abrupt lip and steep dropoff' where a 'gentle break-over' is normally located, or to sign any of the above.

I see no indication Utah has laws the oblige the ski area any differently. In fact, I don't even see in Utah law all of the signage obligations written into the CO law.

 

[crgildart]

"Bailey, who is 56 years old and described as an expert skier," OK right. Any bets on whether or not he was talking on his phone at the time of the accident??

 

[Monique]

I'm sorry Ed got hurt, but if I could sue a ski area for every time I've gotten tangled up by shadows and flat light I'd never have gotten out of court. Of course my injuries were not so bad, and my lost earnings were limited to 10's of dollars at the most.

My fall at A Basin has thus far cost me 7 weeks of lost wages, plus of course ongoing medical expenses. Shadows and flat light definitely played a part; so did my own overconfidence, and arguably maybe bad luck. I may have fantasized for about one second about suing A Basin, but I was in a lot of pain at the time, and even still I immediately dismissed it because it's my job to pay attention and ski so that I can handle whatever surprises might appear in front of me. Granted, in my situation there was nothing unusual about the run that day, just my own exuberance.