We recently represented a victim of a ski accident. The client was a competent skier, who we will call Will, skiing with his wife. He stopped in a safe place and was “taken out” by an out-of-control snowboarder. Note that this was NOT a case against the ski area. They were not at fault. This was a case against the snowboarder, and his HOMEOWNERS INSURANCE policy.
Vermont Ski Area Accident
The accident happened at a large Vermont ski resort. The snowboarder claimed that he thought that Will was not going to stop so he aimed right at Will and, when Will did stop, he collided with him. The force of the impact caused Will to fly out of his skis and land about 10 feet downhill. The force of the impact broke Will’s ankle and the force of Will’s body hitting the snow caused Will’s rib to break and puncture his lung.
Fortunately, the snowboarder stopped, provided his driver’s license, and stayed with Will and his wife until help arrived.
Medical History of Our Client’s Ski Accident
Will was taken to a local Vermont hospital where he spent two days in-patient due to the displaced rib fracture which punctured his lung, resulting in a traumatic pneumothorax. He was treated with a chest tube to drain his lung. Further, he suffered a and non-displaced fracture of the medial malleolus of right tibia.
While the lung healed, he is left with a likely inability to scuba dive. The broken ankle caused him to miss work for a period of time, be somewhat immobile for an additional period of time, and seek significant physical therapy to get himself better. The broken ankle has resulted in a permanent loss of function to his leg. It’s numb in the morning, it’s noticeable on stairs, and always a concern. As a runner, paddleboarder, and skier, it’s axiomatic that this will affect him for the rest of his life.
Mediation of Skier Hit By Snowboarder
This case had an interesting settlement history. The homeowners’ insurance adjuster took a statement from their insured and agreed that this was a clear liability case. They accepted responsibility. The parties therefore agreed to mediation. Our mediation memorandum focused on the long term permanent partial loss of function of Will’s ankle and what the likely ramifications were.
However, at mediation, the insurance company retained counsel. Insurance counsel decided rather than agree that his client caused the collision, he would defend vigorously. First, the insurance defense attorney completely misstated the FACTS – he stated that where Will stopped “in the middle of an intersection… [and he] was not to the side of the trail or in an obstructed area” thus causing the accident – that it was Will’s own fault. The insurance attorney even put in maps of the ski area showing where “collection areas” are.
However, both Will and his wife were able to testify that this was not the case, not at all. The maps were not where Will was taken down. Will had slopped safely, on the side of the trail, nowhere near any intersection or collection area. Further, and most significantly, Will had a Garmin watch and was able to print out, in color, his route from that day. This provided objective evidence of his ski course, confirming that the insurance defense attorney had fabricated critical facts.
Second, the insurance defense attorney misstated the law – he submitted a brief about Vermont ski law. Ski law, including Vermont ski law, makes it VERY HARD TO SUE A SKI AREA. However, suing a skier who negligently skis, or snowboards, into someone causing serious injury, is founded on general negligence law. The insurance attorney decided to cite, and argue, (almost) all of the cases. The most recent one he cited was a 1995 Vermont ski case, indicating that there was an “inherent risk” in skiing and that Will, had “assumed that risk.” “He is not entitled to recover because he assumed the risk of these injuries.”
The insurance attorney neglected to cite the more recent, and more relevant, 2016 case, Mejih-Haffner v. Killington, in which the defendant, not the plaintiff, must prove that there was any inherent risk undertaken by the plaintiff. The fact that the insurance attorney overlooked citing the most recent, and most relevant case, on the issue, but him in a bad position throughout the mediation; he was perceived as disingenuous – because he was disingenuous.
Wherefore, the case was successfully resolved after mediation.
Effective Lawyering For Victim of Ski Accident
As a result of our aggressive approach, knowing the facts, researching the law, and being prepared for the dishonest insurance attorney, we were able to resolve this case effectively. If you, or a loved one was injured because of a ski accident caused by a negligent skier or snowboarder, and you are a Massachusetts resident, give us a call. The consultation is free. Call 617-227-7423.