broad liability waivers unconscionable: boarder can sue bachelor

[creaky fossil]

is the CDN perspective you described also valid for Ontario, Saskatchewan, E Maritime? maybe the swamplanders moving west explains it?

[LeeLau]

Generally its the same through Canada. Pronounced cultural disincentives against frivolous lawsuits (eg if you sue for medical you're just taking away from the taxpayer). Lots of structural bars to an economy of lawsuits; eg financial penalties against those who launch lawsuits, relatively small awards if you win). Lots of little things that add up. Really really hard to win against ski ops just to bring this back to winter sports

[creaky fossil]

Lots of little things that add up. Really really hard to win against ski ops just to bring this back to winter sports

as it should be!

[LHutz Esq]

creaky has it right in a roundabout way

"voluntary assumption of risk" is not through legislation. It's kinda an expression of the way Canadians think about risk and then hashed out in court cases - sometimes called common law.

Canadians in general view wilderness and sporting activities and risk in those settings as "life in an existence where most things are beyond an individual's control". At the risk of speaking for Americans that doesn't seem to be the case in the US

Getting a little off topic as the provision doesn't apply to a ski resort - but BC s Occupiers Liability Act does reference voluntary assumption of risk- actually willing assumption of risk - on certain lands including recreational trails for example. I would think this is the legislature being in tune with the public's General view you referenced

[LeeLau]

Getting a little off topic as the provision doesn't apply to a ski resort - but BC s Occupiers Liability Act does reference voluntary assumption of risk- actually willing assumption of risk - on certain lands including recreational trails for example. I would think this is the legislature being in tune with the public's General view you referenced

Yah sometimes I forget I don't do GP or litigation work so my experience with Occupiers Liability Act is volunteering as a bike advocate but that's a good point. Occupiers Liability in BC (and its almost identical in the rest of Canada) takes the common law and puts it into BC government made law. It's very unfriendly to litigation - imo as it should be. I think that's where Kootenayskier's coming from.

KS - I think you know the David Hay article which discussed that right? There's also the one case out of Comox which looked at that and it basically means insurance rates for trailbuilding is pretty low in Canada relatively speaking

[kootenayskier]

Yah sometimes I forget I don't do GP or litigation work so my experience with Occupiers Liability Act is volunteering as a bike advocate but that's a good point. Occupiers Liability in BC (and its almost identical in the rest of Canada) takes the common law and puts it into BC government made law. It's very unfriendly to litigation - imo as it should be. I think that's where Kootenayskier's coming from.

KS - I think you know the David Hay article which discussed that right? There's also the one case out of Comox which looked at that and it basically means insurance rates for trailbuilding is pretty low in Canada relatively speaking

Yes Lee, I'm pretty up to speed on trails related liability in BC, which is why reading about how the law is applied to these ski resort terrain park incidents in the US seems so foreign.

Creaky, I don't mean to take sides in the libertarian vs progressive debate, which I won't pretend to understand, it just seemed weird that both average people and the courts in the US are so focused legal minutia at the expense of plain common sense.

[creaky fossil]

I wasn't picking on you personally, I've heard many times from many sources that perspective you offered as possible explanation. My response was to the substance, not something against you personally. As I said above, there is some truth to that possible explanation, but it doesn't carry very far. The bigger distinction comes from the cultural perspective Lee described. Down here, getting rich trumps everything, and so if you can get rich via frivolous lawsuits you can gain respect from many fellow Americans, regardless of what ripples out away from the frivolous lawsuit's fat earnings. The other cultural distinction of self-reliance vs Nanny State is a post-Vietnam change in American culture. Litigiousness wasn't really the essence of American culture before WW2. It began shifting mid-20th C and got a big boost post-Vietnam.

[TBS]

Last year, when things were particularly low tide, Squawlpine marked manmade hazards--like old exposed lift tower piers and pipes, but made no attempt to mark natural hazards like rocks (which would have been impossible anyway). Interesting approach.

Mt Bachelor has a lot of sleeper rocks & fumaroles in the early season - which don't get marked. 'Troller told me marking one essentially imposes an obligation to mark em all - miss one, customer falls into it, resort will probably lose a lawsuit. Better to announce that folks need to watch out for unmarked obstacles.

[TBS]

Down here, getting rich trumps everything, and so if you can get rich via frivolous lawsuits you can gain respect from many fellow Americans, regardless of what ripples out away from the frivolous lawsuit's fat earnings. The other cultural distinction of self-reliance vs Nanny State is a post-Vietnam change in American culture. Litigiousness wasn't really the essence of American culture before WW2. It began shifting mid-20th C and got a big boost post-Vietnam.

Serious question - How many suits for negligence are brought by plaintiff's insurance company to offset the costs of large payouts?

[old goat]

Does Oregon have the same kind of law about inherent risks of sports in general or skiing in particular that Colorado has, and I think California? It seems odd that the resort would rely on the liability waiver rather than on assumption of risk. In any case the plaintiff still has to prove his case in court. Seems risky for the plaintiff's attorney if he's on a contingency fee. It seems hard to believe that a jury would blame a resort for an injury on a feature whose intended purpose is to send the skier or rider airborne. Seems like it would hard to prove that there is a standard which defines which park features are safe and which aren't. See the last Olympics.

[creaky fossil]

Serious question - How many suits for negligence are brought by plaintiff's insurance company to offset the costs of large payouts?

1) I don't think it's about the number of lawsuits
2) who is the plaintiff in your Q?
3) large payouts by whom?
4) who seeks the offset?

I don't really know what you're asking. Are you talking about subrogation claims? Reinsurers suing their insureds?

[TBS]

Sorry, will try to clarify. I'm talking about say, when some guy paralyzes himself hucking off a park feature. His health insurance company is now faced with major payouts.

So in this hypo, how often do ins companies sue resort for negligence on behalf of their insured as an extortion tactic to reduce their net claims cost? Seems like this type of tactic would occur much more in a for-profit health-care model than the single-payer system used in each Canukistani province.

[TBS]

Does Oregon have the same kind of law about inherent risks of sports in general or skiing in particular that Colorado has, and I think California? It seems odd that the resort would rely on the liability waiver rather than on assumption of risk. In any case the plaintiff still has to prove his case in court. Seems risky for the plaintiff's attorney if he's on a contingency fee. It seems hard to believe that a jury would blame a resort for an injury on a feature whose intended purpose is to send the skier or rider airborne. Seems like it would hard to prove that there is a standard which defines which park features are safe and which aren't. See the last Olympics.

Remember, this is Powdr Corp we are talking about - the Wiley E Coyote of ski resort management.

[creaky fossil]

So in this hypo, how often do ins companies sue resort for negligence on behalf of their insured as an extortion tactic to reduce their net claims cost? Seems like this type of tactic would occur much more in a for-profit health-care model than the single-payer system used in each Canukistani province.

Okay, it sounds like you're describing a subrogation situation.

My experience is 95% property-casualty-liability, I have very little experience in life/health coverage disputes, most of my life/health related experience is in either agent/broker conduct, or acquisitions-mergers-other regulatory practice.

I'm not familiar with a health coverage carrier pursuing subrogation claims. Subrogation in property-liability-casualty settings IMO isn't a powerful threat device, nor much of an extortive vehicle. Maybe if you skim that linked information it may help explain why I say this?

I don't see a health carrier having the right to stand in its insured's shoes to sue the ski hill, but that might be due to my limited experience in health coverage disputes.

Also I don't know much about how insurers do their business in Canada, the regulatory framework is probably different and the case law is probably a little different too.

I'm talking about say, when some guy paralyzes himself hucking off a park feature. His health insurance company is now faced with major payouts.

The insurance company accepts such risks in exchange for premium $$. To handle volatile risks an insurer keeps a pool of reserves, and can mitigate its "loss" via reinsurance. Insurers that fail to keep an honest pool and/or don't properly reinsure tend to go belly-up.

[DanoT]

While I am not a lawyer but I was an insurance claim adjuster decades ago and even back then it was an accepted principle that you cannot use a sign or a waiver to excuse yourself from being responsible for negligence or gross negligence. So what took Oregon so long to figure this out? Actually I think the signs and lift ticket wavier that says the Lift Co. is not responsible even in the case of negligence is there to try and discourage law suits.

I found it rather shocking that the Oregon Supreme Court used the example of a ski resort having much greater opportunity and ability to know safety condition of a chair lift than the skier. Thus is of course true, but doesn't the court realize that a skier has an opportunity to inspect and assess the ski jump prior to making a jump? If the ski resort doesn't have a staff member on hand to inspect a jump, then the skier, who knows his own ability and limitations, has a better opportunity to determine the safety of the ski jump than the ski resort.

[EaglesPDX]

Now legally binding waivers can't even save you from a lawsuit...

No. Now unreasonable liability waivers will not save you from a lawsuit if you create an unreasonable danger for the public.

In this case, if the jumps were to specs, Bachelor is fine. If there was something wrong with the jump that it didn't work as someone would expect, had some dangerous flaw in design or construction, then Bachelor would be liable.

[creaky fossil]

While I am not a lawyer but I was an insurance claim adjuster decades ago and even back then it was an accepted principle that you cannot use a sign or a waiver to excuse yourself from being responsible for negligence or gross negligence.

That's a pretty pregnant statement, the little bugger's head is crowning.

In what context are you talking about being unable to waive rights? If you carve thematic exceptions like "negligence" either standard or gross, what's the reason? And who says operating a ski area automatically is negligent or grossly negligent?

So what took Oregon so long to figure this out?

What do they have to figure out? What did they miss thus far in their law?

Actually I think the signs and lift ticket wavier that says the Lift Co. is not responsible even in the case of negligence...

Say what?

...is there to try and discourage law suits.

You mean they're not just art? Or some happy task-filling money-making work for a random sign-making apprentice? They might even mean what they say?

I found it rather shocking that the Oregon Supreme Court used the example of a ski resort having much greater opportunity and ability to know safety condition of a chair lift than the skier.

Household voltage? 110V?

How long have you been writing these case summaries? It could be a nice 2d income!

Thus is of course true, but doesn't the court realize that a skier has an opportunity to inspect and assess the ski jump prior to making a jump?

Wait, weren't you just talking about the court's view on chair lift maintenance responsibility?

If the ski resort doesn't have a staff member on hand to inspect a jump, then the skier, who knows his own ability and limitations, has a better opportunity to determine the safety of the ski jump than the ski resort.

What if it's a yacht club, and it's a hit-gap-transition with a shark in the middle, and here comes Fonzie?

[DanoT]

That's a pretty pregnant statement, the little bugger's head is crowning.

In what context are you talking about being unable to waive rights? If you carve thematic exceptions like "negligence" either standard or gross, what's the reason? And who says operating a ski area automatically is negligent or grossly negligent?



What do they have to figure out? What did they miss thus far in their law?



Say what?



You mean they're not just art? Or some happy task-filling money-making work for a random sign-making apprentice? They might even mean what they say?



Household voltage? 110V?

How long have you been writing these case summaries? It could be a nice 2d income!




Wait, weren't you just talking about the court's view on chair lift maintenance responsibility?



What if it's a yacht club, and it's a hit-gap-transition with a shark in the middle, and here comes Fonzie?

I guess you never clicked on the link to the article in the original post. The Court used the inability of a skier to inspect the safety of a chairlift as an example of the resort's responsibility to ensure safety. When compared to to a ski jump where a skier actually does have the ability to inspect the safety of the jump and landing area it turns into a very poor comparison, imo.

[neufox47]

thats ridiculous. so is the example used in the article.."forgot to put a seat down, dragged, broke her arm...." the "language is small, of course no body reads it..." well if you cant sit on a lift maybe you should read it.

absolutely ridiculous

So are you saying that in any event, whether on the chairlift, in the lodge, etc. the ski resort should be held harmless? What if the steps to the lodge collapse and you fall 10' and break your leg?

Personally I think that chairlift accidents and skiing accidents should have a degree of separation. I expect to take responsibility for my actions when I am in control, ie the decisions I make to ski down. I also expect the chairlift to get me to the top without falling off the cable. I would bet all of us have gotten on a chair right after the lifty flipped it down. If they suddenly miss one and you get dragged as a result, that is a different situation to me. I expect the stairs to not collapse, and the building to stand.

I am biased, in 98' I had a chair come off the cable at Indian Head resort, fall 20' to the ground and I broke my arm and had some other more minor injuries. I sued and received a quite paltry settlement. It didn't even cover my medical costs. I'm pretty sure my attorney, who was local to the area, was either paid off by the resort, was incompetent to an extreme degree, or had really really bad cash flow and was trying to get any settlement he could.