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When Skiers Collide is it Recklessness or Just a Risk of the Sport? (NJ)

June 14, 2013

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There is risk in every day life, and our courts sort through how to address that risk, including which risks to encourage and to discourage.  In a landmark decision, the New Jersey Supreme Court determined that it was in society's best interest to encourage vigorous physical activity even though such activity comes with the risk of injury.  In its <em>Crawn v. Campo</em> decision in 1994, the Court recognized that recreational sporting activity such as softball offered an opportunity for physical and mental benefits not just for the individual but society at large.  Thus, when faced with litigation over an injury between colliding participants, the Court enunciated a recklessness standard for claims by one player against another for injuries from a contact sporting event.<i>
Since then, the Court has applied this standard to other recreational activities that don't necessarily involve contact, such as golf in <em>Schick v. Ferolito</em>.  Most recently in <a href=""><em>Angland v. Mountain Creek Resort, Inc.</em></a>, the Court extended the recklessness standard to a claim by the family of a skier against a snowboarder.
The claim arose when a snowboarder collided on a slope with a skier sending him down the hill and into a cement bridge.  The skier died several days later.  The snowboarder claimed that he was merely avoiding another person on the slope when his snowboard made contact with the decedent's skis.
The plaintiffs cited the New Jersey Ski Act that includes a list of duties for skiers and argued that a simple negligence standard should apply with respect to this statutory list.  The Court disagreed and ruled that the Ski Act only applies to claims by a skier against the ski area operator.  In keeping with <em>Crawn, </em>the Court ruled that recklessness was the appropriate standard to govern the claim.  Yet, while the list could not be used to supplant common law in a claim amongst skiers, it could provide insight into "generally accepted conduct" to be expected.
Although the Court sided with the defendant on the applicable standard, it declined to give the defendant snowboarder  the full relief sought.  Remanding the case to the trial court, the Court found the question of whether the snowboarder acted recklessly was for a jury.  Specifically, the Court mentioned the lack of corroboration for the phantom skier among a litany of other assertions such as the snowboarder's failure to keep proper lookout, panicked stop, sudden change of direction, unpredictable actions, and so on.  Although these might sound much like mere negligence allegations, the Court found that these claims could support a jury finding of recklessness.
While this decision will give support to broad application of Crawn's recklessness standard, no doubt plaintiffs will seize on the Court's willingness to let a jury decide what suffices to support such a claim to avoid summary judgment.
For more information, contact Denise Fontana Ricci at <a href=""></a>.


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