Abominable Snow Suits

Who is liable on the slopes?

On a frosty morning in early 1974, a novice skier named James Sunday, 20, was working his way through a slow snowplow turn near the intersection of Drifter and Interstate trails on Vermont's Stratton Mountain. One of his ski tips hooked on a bit of snow-covered underbrush, and Sunday fell. He broke his neck and was permanently paralyzed from the shoulders down. He brought suit, and last year a Burlington, Vt., jury found the Stratton Mountain Corp. fully liable for the accident. It awarded Sunday $1.5 million in damages.

Traditionally, claims for ski injuries have been discouraged by the "assumption of risk" doctrine: anyone who chooses to engage in an obviously risky activity normally must take personal responsibility for what happens to him. With about 200,000 accidents a year occurring on the slopes, skiing certainly qualifies as risky activity. But in presiding over the

Sunday case, Vermont Superior Judge Wynn Underwood, himself an avid skier, refused to allow immediate dismissal "simply because there are some inherent risks in the sport." Ironically, Underwood cited vastly improved maintenance and patrol operations at major ski areas as one reason operators might be held to blame. On such well-groomed slopes, the judge suggested, skiers no longer expect to encounter boulders or stumps and thus can no longer be responsible for assuming that high risks exist in the natural course of things.

Underwood's decision is being appealed this year to the Vermont Supreme Court, and the unfortunate Sunday may never see a cent of his damages. But the case has thrown the nation's ski industry into a tizzy. With rising insurance costs pressing into profits, at least four Vermont ski areas considered shutdowns this year, and one small slope in Underbill Center has remained closed despite generally good snow conditions. At one point, the nation's largest ski insurer, American Home Assurance Co., threatened to cancel its ski-area coverage in Vermont, a move that might have led to wholesale closedowns.

Alarmists are raising the specter of $25-to $35-a-day lift tickets. Ski operators, though, have spotted what looks like an easier fix: the passage of special state laws specifying responsibility for accidents. New Hampshire, New Mexico, Washington and Maine already have legislation making the skier responsible for any downhill (as opposed to ski-lift) accidents. This week the Vermont legislature will consider a bill requiring ski operators only to maintain lifts properly and mark all trails and such foreseeable hazards as snowmaking hydrants. If it passes, schussers who come to grief will be on their own.

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