The state Supreme Court is considering whether the immunity conferred by the state Ski Act on slope operators covers patrons alleged to be partly responsible for skiers’ injuries.
The court, in Angland v. Mountain Creek Resort, A-57-11, heard arguments Monday on whether a snowboarder, William Brownlee, should have to answer claims that his actions led to the death of skier Robert Angland.
Angland and Brownlee collided at the Mountain Creek Resort in Vernon on Jan. 19, 2007. Brownlee claimed that he swerved to avoid an unidentified skier who came into his path. Angland and Brownlee slid for about 100 feet before Angland struck a concrete bridge. He died of head injuries.
Angland’s estate sued Mountain Creek and Brownlee. An expert witness opined that Angland’s head injuries were more likely caused by his collision with Brownlee and not the bridge. There was evidence that there were hardly any other skiers on the slopes that day.
Sussex County Superior Court Judge William McGovern III granted summary judgment for Mountain Creek under the Ski Act, N.J.S.A. 5:13-1 to -11, but he denied Brownlee’s motion, finding a genuine issue of fact in how the accident occurred. The Appellate Division affirmed in an unpublished opinion.
Brownlee’s lawyer, John Burke, argued to the court Monday that the same policy underlying the immunity for slope operators should apply to skiers as well.
“The public policy of this state is to promote participation in recreational sports,” said Burke. “There is no standard of care between skiers.”
Justice Anne Patterson said the statute says skiers must conduct themselves in a manner designed to avoid accidents.
Burke, of Parsippany’s Burke & Potenza, said the statute — written to protect resorts from the dangers inherent in skiing — involves the relationship between the skier and the resort, not between a skier and another skier.
But several justices said it did not appear the act was meant to absolve skiers from their own actions that cause injury or death to others.
Burke said that the statute could have called for the liability of skiers had lawmakers chosen to do that.
“Our Legislature acted with restraint,” he said. “My client is not trying to recover from the mountain.”
Phillip Wiskow, the lawyer representing Angland’s estate, said that although the Legislature “could clarify some thing,” McGovern was correct in ruling that there was a standard of care between skiers, even if the resort was absolved of any responsibility.
The act requires skiers to act with due care rather than recklessly, said Wiskow, of Gelman, Gelman, Wiskow & McCarthy in Dover.
Patterson asked whether the act was meant only to protect the resort.
“The statute serves a dual purpose,” he said, allowing for individual skiers to be held accountable if their actions cause injury or death.
Justice Barry Albin appeared to disagree, saying the act says “nothing about skier versus skier.”
There is nothing specific, Wiskow said. A portion of the act says that no skier shall “knowingly engage in any act or activity by his skiing or frolicking which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.”
“Brownlee agreed to ski within the statute,” Wiskow said. “There was a standard of care he agreed to abide by. Look at the whole picture, the entire field. It’s not just Mr. Angland and the resort. It’s Mr. Angland, the resort and Mr. Brownlee.”
Although Mountain Creek is no longer part of the lawsuit, the court allowed the resort to participate as an interested party. Its attorney, Samuel McNulty, agreed with Wiskow that the Ski Act is meant to ensure the proper conduct of the sport.
In certain cases, liability could be imputed to a skier who negligently causes injury or death, said McNulty, of Florham Park’s Hueston McNulty. “The act says, ‘Thou shalt not do this as a skier,’” he said.