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Hot-doggers beware. The Connecticut Supreme Court has ruled that in skiing, unlike soccer, a negligent collision can be grounds for suit. Furthermore, a ski area operator can be liable for a collision, if caused by an employee, despite a state statute that says skiers assume the risk of “collision with any other person by any skier while skiing.” Flemming L. Norcott Jr., writing for a 5-2 majority, ruled “a skier does not assume the risk of a collision with another skier when such collision is caused by the negligence of a ski area operator, its agents or employees.” On Dec. 4, 1999, New York skier Mary Ann Jagger was skiing at Cornwall’s Mohawk Mountain on an intermediate slope. Ski instructor James Courtot collided with Jagger, allegedly due to his negligence. Her federal suit, Jagger v. Mohawk Mountain, certified two questions of first impression to the state high court. Does a skier assume the risk of an employee-caused collision, thereby foreclosing a negligence action against the ski area? Secondly, does Connecticut extend the doctrine of Jaworski v. Kiernan to the sport of skiing? In that 1997 case, the state supreme court ruled that in order to sue in tort, the injuries from a collision in an amateur soccer game had to arise from intentional or reckless conduct, not mere negligence. Norcott and the majority compared skiing to golf, running and bicycling, where physical contact is unusual, as opposed to football, hockey and basketball, where contact is expected. They traced the evolution of the assumption of risk doctrine in skiing to a 1951 Vermont federal case, Wright v. Mt. Mansfield Lift, denying recovery to a woman who hit a snow-covered stump, hidden on a marked trail. One who takes part in a sport accepts its inherent dangers, the Wright court concluded. In 1978, the Vermont Supreme Court created an uproar, and a spate of protective legislation in ski industry states, after it allowed a novice skier to recover $1.5 million after becoming entangled in a snow-covered clump of brush just off the ski trail. That case, Sunday v. Stratton, led to C.G.S. �29-212. It says skiers assume the risk of “the hazards inherent in skiing, unless the injury was proximately caused by the negligent operation of the ski area by the ski area operator, his agents or employees.” Most of the listed “assumed risk” hazards are naturally created: snow, ice, terrain and off-trail trees. The final assumed risk is collisions between skiers. The majority found an exception to this in the statute’s assignment of liability for operator negligence, if the collision was under the control of the ski area. The legal doctrine of vicarious liability meshed perfectly with the statute and the facts of the case, Norcott wrote, because the ski area operator is legally charged with actual or fictional control of those operating within the scope of their employment. STRONG DISSENT Norcott’s decision reads like a David M. Borden opinion: lengthy, nuanced, and rich in its reference to legislative history and the law of sister states. Borden’s dissent, in which Richard N. Palmer joined, is reminiscent of a 2003 Norcott dissent in a snow-tubing case, Hyson v. White Water Mountain, which argued that a sports enthusiasts should be able to assume the risk, through a signed release, of injury from dangers inherent in snow tubing, including the operators’ negligence, whether the release specifically mentions negligence. As a matter of public policy, not being able to sign away tort recovery rights, Norcott wrote in Hyson, will have “grievous consequences” for recreation in Connecticut. Sport is voluntary, and is used to provide enjoyment, exercise, “a rush of adrenaline” and the satisfaction of competition. Borden joined in that dissent. In Jagger, Borden included operator error as part of the hazards inherent in skiing: “Any and every ski instructor, no matter how carefully selected, trained, and instructed to be careful [can lose control] “at any instantaneous moment of skiing.” This is a risk, he says, “beyond the control of the ski area operator and cannot be minimized by the operator’s exercise of reasonable care.” Like the attempt to waive operator negligence in Hyson, Borden’s reading of the skiing statue in Jagger would include some operator-caused injury, such as an out-of-control ski instructor, as an assumed risk of the sport, foreclosing tort recovery.

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