THE SKI INSTRUCTOR IN LITIGATION

Published in The Professional Skier, 1991-1992

by Chuck Roberts

PSIA Level III Certified

INTRODUCTION

If you think that as a ski instructor you are relatively immune from litigation involving skiing accidents, guess again. Every year ski areas, ski schools and ski instructors are sued as a result of an accident sustained by a skier, whether in a class or not. Plaintiffs (the person doing the suing) bring causes of action (suits) against ski instructors (the defendants, the person being sued) complaining of several counts of professional negligence such as improper instruction, failure to teach a certain skill, taking a student over difficult terrain, etc. Some legal actions against ski instructors may have merit, others do not. The outcome of a legal action against an instructor or ski school can be significantly influenced by the instructor both before and after the lawsuit is filed.

This article reviews typical accident scenarios, complaints against ski instructors, what the ski instructor can do to reduce the chance of legal action and some thoughts on what to expect if involved in a proceeding. The case studies are based on actual lawsuits filed against ski instructors and their respective ski schools.

THE SITUATION

A legal action against a ski instructor or ski school usually stems from an accident involving a skier in a ski class. The student falls or collides with a noncompliant object resulting in significant injury. There are some instances where the accident or situation occurred outside the class. In one case a novice skier was free skiing and fell, breaking a leg. He brought a legal action against the ski instructor, charging that the ski instructor did not teach him how to fall.

Another case involved a ski instructor free skiing who collided with another skier on the slope. A court action resulted.

A third case involved a beginning skier who fell in a class. She brought an action against the ski instructor claiming that the terrain was too difficult for her to negotiate and that the ski instructor should have made a more appropriate selection.

There are cases where the inappropriate behavior of a ski instructor is obvious (1). A young uncertified ski instructor decided to teach a beginning (first time) alpine skier a kick turn at the top of the beginner hill. The instructor showed the student how to perform the kick turn. The student proceeded and after completing one half of the turn, started to slide down the hill, fell and sustained a severe knee injury with 30% permanent disability.

SKI INSTRUCTOR INFLUENCES

Behavior of the ski instructor during a situation can significantly affect the outcome of a legal action. Ski school procedural manuals typically deal with accident situations in the class. Usually they recommend that after an accident has occurred the ski patrol should be immediately notified and the injured skier comforted. In most cases, the ski patrol should handle skier first aid and transport. The purpose of the ski patrol is to offer immediate first aid, and they are usually more qualified as a result of their extensive training. During the comforting phase, while waiting for the ski patrol to arrive, a pleasant demeanor is encouraged. Avoid condescending statements such as "too bad you fell on that icy spot" or "a lot of people have fallen at that location - the ski patrol should have closed off that area" or "I'm surprised your binding failed to release."

Lets look at how these seemingly benign comments can affect a legal action. The comments on the icy spot imply a deficient condition on the slope that caused the accident. The injured skier remembered the comment and reported it to her attorney. Since the ski instructor is looked upon as an expert on skiing, the comment carried some weight and was used as a basis for a claim against the ski area.

The comment regarding the binding implied that the binding was defective in that it "failed" to release. During typical falls sustained by skiers, the bindings may not release even though they may be set, mounted or designed properly. The reason is that the forces passing through the binding system may not have been of sufficient magnitude to cause release. Picture a skier that rails an edge and falls over laterally. This often results in binding non release in properly set up binding systems. Nevertheless the comment was used as a basis for a lawsuit against the ski area rental operation despite the fact that the comment had no technical basis.

During class several topics can be discussed that can help reduce the chance of injury to students. Introduction of the Skier's Responsibility Code (2) in the beginning classes, as well as a review of the code in more advanced classes, helps make students more aware of skiing safety. Following generic lesson content as promulgated by PSIA in ATM manuals gives an authoritative basis for your teaching. Should a suit arise concerning lesson content, having followed generic lesson makeup can help your case. Any deviations from ATM will have to be justified which in some cases may be detrimental to the ski instructor. For instance do you think the instructor who taught a kick turn on top of a beginner hill to a typical first time student could justify this deviation from the norm. Plaintiff attorneys often use PSIA manuals as authoritative literature to show that an instructor was negligent in not following the "book".

Selection of appropriate terrain is an important judgment call on the part of the instructor. Obviously, overly challenging terrain invites an increased chance of accidents and injuries in class.

Certification status can be a mitigating factor with respect to your overall qualifications for teaching. Being certified (associate or full) is viewed as being more qualified that an uncertified instructor.

LEGAL PROCEEDINGS

If you are involved in a lawsuit regarding the ski school, several things can happen. The case could be settled without any further involvement on the part of the ski instructor. If the case does not settle, then your deposition may be taken. You will be required to appear before a court reporter and the attorneys for both sides, at which time you will be answering questions concerning the incident while under oath. This information results in a document called a deposition transcript which can be used during a trial. During the deposition, you may be asked to explain how the accident occurred, review your teaching procedure or comment on the appropriateness of your behavior after the accident. It is not unusual for the plaintiff attorney to try to make you look deficient in your class handling or class presentation and essentially try to make you the "fall guy". A meeting with the defense attorney prior to the deposition will help alert you to possible lines of questioning.

If the case does not settle after the deposition phase, a trial may occur, during which you will have to testify in front of a jury that probably has little knowledge of skiing and ski instruction. An honest, professional and slightly humble demeanor will go a long way toward effective testimony in the court room.

CLOSING

Ski instructors are held accountable for the conduct of a ski school class. Politeness, common sense, and utilization of recognized teaching methods go a long way to a successful and meaningful learning experience. If an accident does happen, follow the ski school procedure if possible and avoid commentary beyond your area of expertise. Remember that your actions may require explanation in court.

1. Roberts, C., "The Ski School and the Law (A Case History), CPSIA Newsletter, 1982.
2. Schuster, W., "Risk Awareness and Skiing Safety in the Ski School", PSIA Educational Foundation, October, 1979.