Ski Crash Suit Veers Off Path for 'Foul Ball' Cases

     (CN) - A Pennsylvania resort may be liable for a collision between a skier and the woman who stood on the snow watching her family take ski lessons, a federal judge ruled.
     Colleen and William Barillari sued Ski Shawnee Inc. after visiting the Shawnee Mountain Ski Area in Monroe County, Pa., on Jan. 10, 2010.
     That day, Colleen was not a ticketed skier, but rather came to watch her husband and children take ski lessons.
     Despite the presence of a sign stating that "a ticket or a pass is required to be on the snow," Colleen stood on the slope near a line of tape dividing the instruction area from a ski run.
     Colleen claimed that she suffered injuries to her left leg when a skier collided with her.
     Though Colleen had skied before and was generally aware of the possibility of collisions, she later said she was not worried about the risks that day, based on her closeness to the tape and other spectators - not skiers - standing in the area.
     Ski Shawnee employees also said that the warning sign may be ambiguous and that the policy was not routinely enforced, the Barillaris claimed.
     The complaint asserts claims for negligence and loss of consortium.
     Ski Shawnee moved for summary judgment, arguing that the Barillaris' claims are barred by either the Pennsylvania Skier's Responsibility Act or the traditional common law assumption of risk doctrine.
     U.S. District Judge Matthew Brann denied the motion Tuesday, finding that Colleen was not skiing at the time of the accident, as required by the cited statutes.
     "Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been 'engaged in the sport,' that is an entirely different matter from someone who is purely a spectator," Brann wrote. "Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport."
     Because nothing in the record indicates that Colleen was specifically aware of the danger that later befell her, the voluntary assumption of risk doctrine does not apply, the ruling states.
     The judge also threw out the ski resort's claim that Colleen's case is directly analogous to a spectator at a baseball game being hit by a foul ball.
     "Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport," Brann wrote (emphasis in original).
     "A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands," the judge added. "The court is not aware of a similar majority that assumes they will see a number of skiers crash violently into spectators on a day trip to the mountain."
     The court further held that charging the resort with the ordinary duty of care to protect spectators "will not in any way affect the essence of skiing. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts."
     A jury will decide whether either or both parties were negligent, the ruling states.