# Ski Sundown Lawsuit



## WoodCore (Sep 29, 2010)

Saw this in the local newspaper today....

http://www.registercitizen.com/articles/2010/09/28/news/doc4ca2bb2a414de452355020.txt

Hope all ends well for Sundown and the Industry in general with this one.


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## Highway Star (Sep 29, 2010)

Bummmerrrr.


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## thetrailboss (Sep 29, 2010)

Generally suing a ski area is not successful. In Vermont there are laws that protect ski areas from such suits. I really don't see how this guy is going to get anything, especially considering: 



> Recounting the event, Malaguit said he was not wearing a helmet or goggles and hat visibility was limited because of the dark evening sky.


 
That said, the insurance company still had to pay the defense costs.


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## severine (Sep 29, 2010)

Glad to see all the comments on the article are calling this guy out for being a dumbass.

CT is full of Blonskis this year.


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## SkiDork (Sep 29, 2010)

its certainly a tough situation.  Cases like this have the potential of eliminating jumps altogether.  People should certainly not try the big jumps without ever having worked up to it.  But how is the ski area supposed to determine whether each person who tries a jump is qualified?  Tough call.


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## skiadikt (Sep 29, 2010)

thetrailboss said:


> Recounting the event, Malaguit said he was not wearing a helmet or goggles and that visibility was limited because of the dark evening sky.



and so whose fault is that ... i certainly wouldn't wish that on anybody but there's no case here.


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## thetrailboss (Sep 29, 2010)

skiadikt said:


> and so whose fault is that ... i certainly wouldn't wish that on anybody but there's no case here.


 
Exactly.  Not prepared, no experience, no helmet.  I'm sure that they had the standard "look before you jump" signage warning skiers and riders not to try these park features unless they have experience/knowledge.  

The guy was probably looking for a settlement and the insurance company said, "no way.  See you in Court!"


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## severine (Sep 29, 2010)

SkiDork said:


> its certainly a tough situation.  Cases like this have the potential of eliminating jumps altogether.  People should certainly not try the big jumps without ever having worked up to it.  But how is the ski area supposed to determine whether each person who tries a jump is qualified?  Tough call.


IIRC, isn't the back of the lift ticket a release from liability for the ski area to begin with? I thought it said something like "by buying this ticket, you acknowledge that this is a dangerous sport and will not hold us liable." And the entrance to Stinger does have some sort of liability releasing statement about advanced abilities required as well. Signage (if we're going down that road) exists; this guy just cut over across Exhibition from a less-advanced trail to get there. That doesn't mean that the ski area should be liable; it just means he's an idiot with sad consequences for his actions.

In other words, it shouldn't be up to the ski area to determine who is qualified or not to ski the jumps.


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## bvibert (Sep 29, 2010)

What a crock.  I feel bad for the guy, but sometimes shit happens.  I hope this doesn't drag on too long, costing Sundown even more money... resulting in my lift ticket price going up... :roll:


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## SkiDork (Sep 29, 2010)

severine said:


> IIRC, isn't the back of the lift ticket a release from liability for the ski area to begin with? I thought it said something like "by buying this ticket, you acknowledge that this is a dangerous sport and will not hold us liable." And the entrance to Stinger does have some sort of liability releasing statement about advanced abilities required as well. Signage (if we're going down that road) exists; this guy just cut over across Exhibition from a less-advanced trail to get there. That doesn't mean that the ski area should be liable; it just means he's an idiot with sad consequences for his actions.
> 
> In other words, it shouldn't be up to the ski area to determine who is qualified or not to ski the jumps.




Agreed, but thats not the way it works in the legal system.  You can still sue even with the liability statement on the ticket.  Whether or not you'll win is a different story.  But the consequence is ski areas will simply eliminate the jumps so as to not have to potentially defend suits such as this.  it sux but its reality.


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## mondeo (Sep 29, 2010)

Not that I'm backing him, but I'm not sure how wearing a helmet would prevent a spinal injury.

Except that they may claim it speaks to his overall willingess to assume risk.


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## Warp Daddy (Sep 29, 2010)

Given the circumstances  IMO its difficult to imagine how  this case will be won by the plaintiff when reasonable minds examine It . 

While it truly is an unfortunate occurance,  he exercised poor judgement by attempting the jump obviously under less than ideal conditions and by not possessing the ABILITY to execute the manuver  , poor preparation by his own admission by failing to wear helmet etc .. Moreover  the organization, by virtue of the fact of the stated warning on the rear of the ticket and by his purchase of said ticket gave notification that skiing is a DANGEROUS  sport  etc etc etc .

Too bad looks like the real intent here is a  out of court settlement.


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## severine (Sep 29, 2010)

Warp Daddy said:


> Given the circumstances  IMO its difficult to imagine how  this case will be won by the plaintiff when reasonable minds examine It .


The same was said about the Blonski mountain biking case at the West Hartford Reservoir and yet she won. Baffling.


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## SkiDork (Sep 29, 2010)

Warp Daddy said:


> Given the circumstances  IMO its difficult to imagine how  this case will be won by the plaintiff when reasonable minds examine It .
> 
> While it truly is an unfortunate occurance,  he exercised poor judgement by attempting the jump obviously under less than ideal conditions and by not possessing the ABILITY to execute the manuver  , poor preparation by his own admission by failing to wear helmet etc .. Moreover  the organization, by virtue of the fact of the stated warning on the rear of the ticket and by his purchase of said ticket gave notification that skiing is a DANGEROUS  sport  etc etc etc .
> 
> Too bad looks like the real intent here is a  out of court settlement.




Question:  Is there any way for the ski area to recover the costs of their defense?


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## Warp Daddy (Sep 29, 2010)

severine said:


> The same was said about the Blonski mountain biking case at the West Hartford Reservoir and yet she won. Baffling.



Not familiar with the case but  strange events can occur in courtrooms , given the make up of juries ----------------OJ


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## billski (Sep 29, 2010)

SkiDork said:


> But the consequence is ski areas will simply eliminate the jumps so as to not have to potentially defend suits such as this.  it sux but its reality.



On the flip side, some resorts were really late to the game in installing terrain parks, allowing skiing in the woods or even, get this, boarding because they feared it would open themselves up to more lawsuits by introducing more risk.  In  the end, these attractions are probably what, in part has sustained some of them.

It's all about managing risk.  I saw a SIA statistic a few years ago that showed insurance costs were running about 15% of total expense at an average US resort, labor being the most expensive (nearly 50%), and energy costs being second place.


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## bvibert (Sep 29, 2010)

SkiDork said:


> Question:  Is there any way for the ski area to recover the costs of their defense?



I don't know, but there should be, IMHO.


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## marcski (Sep 29, 2010)

His lawsuit will be a loser.  No way to win. He didn't hit any structures that were negligently left on the trail. It doesn't appear that he is alleging that the jump was too close to the side of the trail or a tree or other obstruction. It says he landed on his head!  So, any of the other claims in the article regarding crowded slopes has no bearing since he didn't collide with another skier or object...he landed on his head.  

This is why there is insurance. To pay for defense costs for claims such as this one...and to pay out legitimate losses.  It is a farce, if people believe insurance companies are going to lower premiums if there are tort reform laws.


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## bvibert (Sep 29, 2010)

It's a waste of money is what it is.  The only ones who really benefit are the lawyers.


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## dmc (Sep 29, 2010)

There's a special place in hell for those that sue ski areas...


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## drjeff (Sep 29, 2010)

marcski said:


> His lawsuit will be a loser.  No way to win. He didn't hit any structures that were negligently left on the trail. It doesn't appear that he is alleging that the jump was too close to the side of the trail or a tree or other obstruction. It says he landed on his head!  So, any of the other claims in the article regarding crowded slopes has no bearing since he didn't collide with another skier or object...he landed on his head.
> 
> This is why there is insurance. To pay for defense costs for claims such as this one...and to pay out legitimate losses.  It is a farce, if people believe insurance companies are going to lower premiums if there are tort reform laws.



99% of the time, that should be true.  The wildcard often is what happens when the case is heard before a jury of one's peers.  Often the sympathy factor comes into play.  And the jury ends up weighing the descision of legal liability vs. human empathy - could be a factor in this case as the jury probably got to look at someone in their early 20's who is wheelchair bound in all likelyhood for the rest of his life.

There's nothing wrong with empathy/emotion, but often times it can really cloud one's ability to objectively follow the instructions of the court


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## mister moose (Sep 29, 2010)

This is one jury I wish I was on.

At 15, you can assert that Malaguit was old enough to recognize that electing to take the jump was his choice, that skiing without a helmet was his choice, that he had no training to prepare him for the dangers that existed.  Yet at some point a child is not capable of making those decisions.  What age is that?  And how do you insure young children aren't lured into dangerous terrain on a ski resort?  What if an adult skier is illiterate or non english speaking  and can't read the warning signs?  Where should the signs be placed?  How large should the signs be?  These questions need to be addressed by the industry.

Skiing by its very nature is dangerous.  It is impossible to eliminate the risk of injury.  There is an assumption of this risk by all participants, and it is written out for you on the back of your ticket.  The only way to eliminate all risk is to eliminate the sport, and that is silly.  

I'd like to see an industry association put out a pamphlet on skiing/riding safety.  It would discuss parental supervision, parental assumption of risk (ie the parent is responsible for the child's actions), skiing within your ability, the code, special safety concerns about the trees, out of bounds, and terrain parks.  The back of your ticket would refer to it, and all ticket windows would have the pamphlet available, and signs directing you to read it.  All resorts websites would have a safety tab, and would link to nationwide or region wide web page on safety.  The language would be short, concise, and plain english.  All this is to better inform the future Darwin candidate public, and insulate the resorts from their lawyers.

This would create an industry wide standard against which cases like this would be measured.  Parents couldn't claim they weren't notified.  There would be an industry wide accepted standard that resort defendants could point at to show that they exercised an industry standard level of care and concern in signage, terrain park design, grooming, care, etc.

The recent trend toward "extreme skiing", higher and more complicated aerials, more Olympic coverage of massive superpipe spins, more tree skiing, terrain parks, off piste skiing and film clips of hucking cliffs all create the need to inform young minds that you can get hurt doing these activities.  Seriously hurt.  A TV ad that makes it look cool and easy to do doesn't mean you should go out and try it without some training and experience.

I'm glad the sport has diversified and created more excitement and interest.  The industry needs to keep their safety practices one step ahead of abusive lawsuits, not water down the excitement and fun.  Because that's the product they are selling us, excitement and fun.

Not that gross negligence by any resort shouldn't result in losing a lawsuit.  But from reading the article, the was no gross negligence indicated.


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## marcski (Sep 29, 2010)

drjeff said:


> 99% of the time, that should be true.  The wildcard often is what happens when the case is heard before a jury of one's peers.  Often the sympathy factor comes into play.  And the jury ends up weighing the descision of legal liability vs. human empathy - could be a factor in this case as the jury probably got to look at someone in their early 20's who is wheelchair bound in all likelyhood for the rest of his life.
> 
> There's nothing wrong with empathy/emotion, but often times it can really cloud one's ability to objectively follow the instructions of the court



I'd venture to say that few if any lawsuits against ski areas result in any award to the plaintiff.  Again, unless you're talking about collisions with objects or machinery negligently left on an open trail or other structural defects, such as lifts.


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## deadheadskier (Sep 29, 2010)

dmc said:


> There's a special place in hell for those that sue ski areas...



I'm not sure I 100% agree with this.

Do I think the kid will / should win his case.  No.

That said, I can sympathize with the family for trying to offset what I'm sure are huge costs for his care.  I don't think anyone can say exactly what they'd do if facing a similar situation until they are in it.  Life is a struggle for most financially while in good health.  Trying to ease that burden during a far more difficult situation is somewhat understandable.  

There's a guy in Stowe, VT who paralyzed himself in a skiing accident.  He's got a sweeping estate with horse farm, right on route 100 just north of the Shaws in town.  Goes out to eat regularly at the nicest restuarants in town, 24 hour nurse care, I've had friends who have been the caretaker on his property.  He lives a level of luxury I'll never know.  Of course I'm sure he'd trade places with me in a second.  I certainly wouldn't trade places with him.   The accident and settlement came in the 80s.  Liability protection for ski areas is much better now than it was then.  Still because of that case, I'm sure lawyers still feel they can secure similar rewards for those involved in accidents today.


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## dmc (Sep 29, 2010)

deadheadskier said:


> I'm not sure I 100% agree with this.
> 
> Do I think the kid will / should win his case.  No.
> 
> That said, I can sympathize with the family for trying to offset what I'm sure are huge costs for his care.  I don't think anyone can say exactly what they'd do if facing a similar situation until they are in it.  Life is a struggle for most financially while in good health.  Trying to ease that burden during a far more difficult situation is somewhat understandable.



Sure I feel bad for families and can understand the desperation to try to offset the cost of care..  But -  one bad lawsuit could put a small ski area under.  

I hurt myself while uninsured once snowboarding... It cost $1000 for Dr's - Xrays - RX...  
I had to delay my rent - and missed working...  But I didn't sue the ski area..

Most of these cases are wrong..


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## neil (Sep 29, 2010)

I'd like to know more details on how this guy actually managed to land on his head. I'm going to guess he was attempting a straight air, freaked out by how high he was and leaned back causing him to over-rotate and land on his head.


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## Glenn (Sep 29, 2010)

I feel bad he was hurt. But he assumed the risk by hitting the jump. 

We all take a risk when hitting the slopes...it's part of the sport. Hell, we all take a risk driving to work every morning...


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## legalskier (Sep 29, 2010)

That article raises more questions than it answers for me.  I'm trying to figure out what legal theory he's advancing; usually it's negligence primarily, with additional claims tacked on (breach of contract, etc)  So as a service to the board and knowing how much Sundown is cherished here, I searched around and found another article that says "he and his mother...blame the ski facility _for allowing access to the dangerous jump_." Kind of vague, but it might get at the signage question Carrie mentioned...except I'm thinking his argument may be that, even though there may have been signage at the top (beginning) of the trail, there was none _at the point where he entered it_ when he "crossed over" to that trail from another on February 17, 2006. Here's the link with a pic of him: http://www.rep-am.com/articles/2010/09/29/news/local/510530.txt

Is this a winning argument? No idea, but it's gotten him this far. The case has made it to a courtroom and is being presented to a jury, which means it has survived pre-trial challenges for dismissal.


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## Puck it (Sep 29, 2010)

I feel sorry for the guy, but this is problem in this country.  We do not take reponsibility for our actions.  It has taken some time for the ski industry here to allow jumps, glades and other things.  We need to adopt more of the French policy when it comes to this.  The French have at least gotten that thing right.


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## legalskier (Sep 29, 2010)

Here's a statement of the law of Ct. in this area.  I haven't corroborated its accuracy; I've only so much time in a day:

_A recent Connecticut Superior Court decision discussed the state’s law concerning the liability of ski resort operators.  Although liability waivers can be difficult to enforce in Connecticut courts, the Connecticut General Assembly has enacted measures to protect ski resort operators.

Connecticut General Statutes Section 29-212(b) provides as follows:
*Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to:*
(1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions, *except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations*;
(2) bare spots which do not require the closing of the trail or slope;
(3) conspicuously placed or, if not so placed, conspicuously marked lift towers;
(4) trees or other objects not within the confines of the trail or slope;
(5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and
(6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.

Skiing is treated differently than other pursuits as it is inherently dangerous by nature – and in Connecticut, by statute.  Therefore, skiers assume virtually all of the risks “caused by the hazards inherent in the sport.”  Trail conditions, objects located off the trails, lift towers, collisions with other persons and other undefined conditions are considered inherent dangers. 
The statute provides an exception to the assumption of the risk rule for collisions with ”on-duty employees of the ski area operator.”  The case of Kearns v. Ski Sundown, Inc., 2009 WL 3739414 (Conn.Super. 2009), discussed that the wording of the statute – excluding “on duty employers” – does not necessarily protect resorts from acts of non-employee agents, such as volunteers.  (The court’s discussion came within the plaintiff’s Motion to Strike the defendant’s Special Defense.  The case has yet to be decided on the merits).
*Of course this statute doesn’t preclude plaintiffs from attempting to make arguments that their clients’ injuries were caused by events not inherent to the sport.  But compared to the analysis under a standard liability waiver, a plaintiff suing a ski resort faces a much higher burden.*_
http://ctsportslaw.com/2010/03/01/connecticut-ski-resort-liability/

(I highlighted some pertinent language in bold type.)

He may be arguing that he didn't assume the risk because such jumps aren't part of normal "snow grooming" and thus aren't "inherent to the sport," but I'm speculating.


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## neil (Sep 29, 2010)

From reading that newspaper article there is no way he wins this because it says:

"Malaguit, 15, had spotted a jump on his way up the triple chair and decided to try it on his third run down the mountain"

Seems like it was his decision to take the jump, and he'd seen the jump in its entirety. It's not like he had crossed over a trail that had a jump that he hit without being aware of it.


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## legalskier (Sep 29, 2010)

thetrailboss said:


> Not prepared, no experience, no helmet.  I'm sure that they had the standard "look before you jump" signage warning skiers and riders not to try these park features unless they have experience/knowledge.
> The guy was probably looking for a settlement and the insurance company said, "no way.  See you in Court!"



!. Good point. In a negligence action a jury can consider "contributory negligence" on the part of the plaintiff, which would reduce the ultimate award, if any.  Please note, though, that he has to get his case past a motion to dismiss after he rests his case, i.e. the judge could throw it out after they present their proofs.

2. Yes indeed, the insurance company did say that or something close.


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## bobbutts (Sep 29, 2010)

marcski said:


> I'd venture to say that few if any lawsuits against ski areas result in any award to the plaintiff.  Again, unless you're talking about collisions with objects or machinery negligently left on an open trail or other structural defects, such as lifts.



Yeah I had an experience on time at Killington in the 90's where an employee was going very fast on a snowmobile, lost control and fell off sending the snowmobile careening at me and my future wife.  Scared the crap out of us, but luckily rolled by harmlessly.  If either of us had been injured there no doubt we'd have sued K and not felt guilty about doing it.

To me the Sundown case is clearly bogus, but like DHS I can sympathize somewhat with why he's suing.  He's probably broke and paralyzed and this is probably his only chance at not bankrupting his family with medical bills.  If my life and family's finance were on the line I'm not really sure I'd be able to do the right thing either.


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## dmc (Sep 29, 2010)

bobbutts said:


> To me the Sundown case is clearly bogus, but like DHS I can sympathize somewhat with why he's suing.  He's probably broke and paralyzed and this is probably his only chance at not bankrupting his family with medical bills.  If my life and family's finance were on the line I'm not really sure I'd be able to do the right thing either.



I also wonder if it's the insurance company suing..


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## legalskier (Sep 29, 2010)

SkiDork said:


> Question:  Is there any way for the ski area to recover the costs of their defense?



Those costs generally are covered by the insurance carrier.


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## legalskier (Sep 29, 2010)

drjeff said:


> The wildcard often is what happens when the case is heard before a jury of one's peers.  Often the sympathy factor comes into play.  And the jury ends up weighing the descision of legal liability vs. human empathy - could be a factor in this case as the jury probably got to look at someone in their early 20's who is wheelchair bound in all likelyhood for the rest of his life. There's nothing wrong with empathy/emotion, but often times it can really cloud one's ability to objectively follow the instructions of the court



Mos def, that is the wild card. Let's hope Sundown's attorney not only is experienced in the mechanics of trial (I'm thinking she or he must be), but also relates well to the jury. That wild card you mention is a challenge for her/him.


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## legalskier (Sep 29, 2010)

bvibert said:


> The only ones who really benefit are the lawyers.



Disagree there Brian.


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## bvibert (Sep 29, 2010)

legalskier said:


> Those costs generally are covered by the insurance carrier.



Why does everyone always think the insurance money is free money?  If the insurance company has to pay out they are going to cover their losses by raising rates, and not necessarily just for the one ski area being sued.


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## bvibert (Sep 29, 2010)

legalskier said:


> Disagree there Brian.



Who else benefits from a case like this?  It's just a burden on the ski area to have to defend themselves.  The plaintiff likely won't see any money.  The consumers ultimately have to pay more as insurance costs go higher and higher.  Who else other than the lawyers are making out??


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## legalskier (Sep 29, 2010)

bvibert said:


> I feel bad for the guy, but sometimes shit happens.:



So do I. A ski buddy/colleague of mine suffered a catastrophic injury 27 years ago at Suicide Six. Weird thing was, he was on the easiest trail near the end ("Easy Mile" or something). He was revived lying next to a tree at the trailside. No one witnessed it and he couldn't remember anything. Weeks later he returned as a paraplegic in a wheelchair. Really sad; he was a pisser to ski with. It never held him back though. He raises champion dogs now. He never sued SS, never spoke badly of them. He's a lawyer.

Btw, his GF still married him, what an angel. :beer:

GTGN


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## Glenn (Sep 29, 2010)

dmc said:


> I also wonder if it's the insurance company suing..



Good point. I think if it was the insurance company, they'd be named as the plaintiff. In this case, it seems it's actually the skier going after the ski area.


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## bvibert (Sep 29, 2010)

bvibert said:


> Why does everyone always think the insurance money is free money?  If the insurance company has to pay out they are going to cover their losses by raising rates, and not necessarily just for the one ski area being sued.





bvibert said:


> Who else benefits from a case like this?  It's just a burden on the ski area to have to defend themselves.  The plaintiff likely won't see any money.  The consumers ultimately have to pay more as insurance costs go higher and higher.  Who else other than the lawyers are making out??



BTW - No offense is intended to lawyers in general or specifically the ones on this board.  I'm just sick of this sue happy society that we're living in.  No good comes out of crap like this, IMHO.

The Blonski case that Carrie mentioned earlier in the thread really got me fired up a few months back, this is helping to refuel the smoldering ashes left behind...


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## Beetlenut (Sep 29, 2010)

Really Sad. But in the end I feel he will not win because his actions were premeditated. He knew before hand that the conditions were, "bumpy,” “grainy” and “slightly icy". His actions were planned, "He saw the jump from the chair lift and had planned to go off of it". He said, "that he thought he would have enough time to try the jump before joining his family and friends at the chairlift". Probably took the jump with too much speed, because he was in a hurry, and over rotated. He went out of his way, "crossing Exhibition from Canyon Run", to get to it. This all but nullifies any  negligence of the mountain.


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## dmc (Sep 29, 2010)

Glenn said:


> Good point. I think if it was the insurance company, they'd be named as the plaintiff. In this case, it seems it's actually the skier going after the ski area.



OK... I wasn't sure..  

I do remember a friend who got into a car accident..  A wheel fell of another car and smashed her roof - she almost ended up a paraplegic but is OK now..

the guy who was in the passenger seat was her best friend..  He was hurt - and his insurance company sued her...  it was f'd up...


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## legalskier (Sep 29, 2010)

bvibert said:


> Who else benefits from a case like this?  It's just a burden on the ski area to have to defend themselves.  The plaintiff likely won't see any money.  The consumers ultimately have to pay more as insurance costs go higher and higher.  Who else other than the lawyers are making out??



OK, quick- If he wins, the plaintiff will benefit (as well as his insurance company that's been covering his medicals thus far). His lawyer would get some slice of that; it's usually regulated by law. (The guy, like everyone, doesn't work for free.) If he loses neither gets nada, and Sundown (and its insurance co) wins. 
Stay tuned....


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## bvibert (Sep 29, 2010)

legalskier said:


> OK, quick- If he wins, the plaintiff will benefit (as well as his insurance company that's been covering his medicals thus far). His lawyer would get some slice of that; it's usually regulated by law. (The guy, like everyone, doesn't work for free.) If he loses neither gets nada, and Sundown (and its insurance co) wins.
> Stay tuned....



That's where we disagree; no matter what the outcome Sundown (and its insurance co) lose.  They may not lose as much, but they still lose.


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## Glenn (Sep 29, 2010)

dmc said:


> OK... I wasn't sure..
> 
> I do remember a friend who got into a car accident..  A wheel fell of another car and smashed her roof - she almost ended up a paraplegic but is OK now..
> 
> the guy who was in the passenger seat was her best friend..  He was hurt - and his insurance company sued her...  it was f'd up...



Insurance can get "intersting" like that to say the least. I'd have to check documents, but I think there's something in most health insurance plans that covers sports injuries and whatnot. It gets dicey in situations like the one you mentioned...where it's out of the ordinary and someone may be "at fault".


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## drjeff (Sep 29, 2010)

legalskier said:


> OK, quick- If he wins, the plaintiff will benefit (as well as his insurance company that's been covering his medicals thus far). His lawyer would get some slice of that; it's usually regulated by law. (The guy, like everyone, doesn't work for free.) If he loses neither gets nada, and Sundown (and its insurance co) wins.
> Stay tuned....



If he looses, Sundown just gets to pay less, since the kid won't be paying Sundown's legal costs in their defense, since like as you said, their lawyer presumably doesn't work for free


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## gmcunni (Sep 29, 2010)

bvibert said:


> That's where we disagree; no matter what the outcome Sundown (and its insurance co) lose.  They may not lose as much, but they still lose.



i think it is really just a cost of doing business ( i'm not a fan of frivolous lawsuits  mind you).  i've dealt with Legal teams a lot, they "budget" for litigation.  if we identify a risk they often weigh the cost of mitigation vs. litigation when making the decision on what to do.


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## bvibert (Sep 29, 2010)

gmcunni said:


> i think it is really just a cost of doing business ( i'm not a fan of frivolous lawsuits  mind you).  i've dealt with Legal teams a lot, they "budget" for litigation.  if we identify a risk they often weigh the cost of mitigation vs. litigation when making the decision on what to do.



I understand that.  IMHO just because it's the cost of doing business doesn't make it right.


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## gmcunni (Sep 29, 2010)

bvibert said:


> I understand that.  IMHO just because it's the cost of doing business doesn't make it right.



can't remember where i heard/read this but recall a similar discussion and the proposed solution (practiced in europe??) was that when a plaintiff loses a civil case he is responsible for the court costs (state's and defendant's) so it is no longer "free" to sue.


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## marcski (Sep 29, 2010)

bvibert said:


> That's where we disagree; no matter what the outcome Sundown (and its insurance co) lose.  They may not lose as much, but they still lose.



That's why you have and pay for insurance Brian.  So the carrier pays the costs of defense and indemnification for any judgment that might be rendered against the insured.    

Again, you guys have your heads in the sand if you think there will be any real decrease in insurance premiums if such cases were limited through some type of tort reform.  Tort reform will only end up benefiting the insurance companies and, in turn, other big business. It will definitely hurt the individual and limit his ability to obtain legal redress.

(But the case against Sundown will still be a loser!)


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## bvibert (Sep 29, 2010)

gmcunni said:


> can't remember where i heard/read this but recall a similar discussion and the proposed solution (practiced in europe??) was that when a plaintiff loses a civil case he is responsible for the court costs (state's and defendant's) so it is no longer "free" to sue.



A step in the right direction for sure.


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## bvibert (Sep 29, 2010)

marcski said:


> That's why you have and pay for insurance Brian.  So the carrier pays the costs of defense and indemnification for any judgment that might be rendered against the insured.



Exactly the problem, that it's needed for stupid shit like this case.



marcski said:


> Again, you guys have your heads in the sand if you think there will be any real decrease in insurance premiums if such cases were limited through some type of tort reform.  Tort reform will only end up benefiting the insurance companies and, in turn, other big business. It will definitely hurt the individual and limit his ability to obtain legal redress.



Keep telling yourself that.


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## vonski (Sep 29, 2010)

The only thing I think one could argue is that the mountain did not protect him as he was able to cross over from another trail.  So, he could say he did not know it was rated expert.  And that the jump is man made therefore should be better controlled by the mountain. Pretty weak argument but possible angle.  I sure hope that he does not win.


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## mondeo (Sep 29, 2010)

marcski said:


> Again, you guys have your heads in the sand if you think there will be any real decrease in insurance premiums if such cases were limited through some type of tort reform. Tort reform will only end up benefiting the insurance companies and, in turn, other big business. It will definitely hurt the individual and limit his ability to obtain legal redress.


Economists disagree:

http://en.wikipedia.org/wiki/Supply_and_demand


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## dmc (Sep 29, 2010)

This sucks on a lot of levels...

Somebody got hurt - somebody needs to pay - lift tickets go up - jumps get knocked down - people over react and overgroom..  

It just sucks...

I think most of the time Hunter Mtn tries to settle out of court..   Some sort of payoff and told never to step foot back in the area..  I knew a guy that sued - hurt his back when he fell on a whale and slide into the woods on Eisenhower - he got some $ before it went too far and was told never to come back.  he's not my friend anymore.  he fell - it was an accident..  no more.. no less...  If I ever saw him - I'd turn him in..


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## marcski (Sep 29, 2010)

bvibert said:


> Keep telling yourself that.



I know it to be true. If you get hurt, you will be limited to 250k in pain and suffering.  Otherwise, you will only be able to recover for lost earnings....So, basically, tort reform only protects the rich. Since Joe Schmo, who earns minimum wage, will only be entitled to recoup that minimum wage.  But, "the man" that makes big bucks in salary, is protected because he'll be able to get his lost earnings.  So, yes, I will most definitely keep telling myself this.


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## mondeo (Sep 29, 2010)

marcski said:


> I know it to be true. If you get hurt, you will be limited to 250k in pain and suffering. Otherwise, you will only be able to recover for lost earnings....So, basically, tort reform only protects the rich. Since Joe Schmo, who earns minimum wage, will only be entitled to recoup that minimum wage. But, "the man" that makes big bucks in salary, is protected because he'll be able to get his lost earnings. So, yes, I will most definitely keep telling myself this.


Ah, redistribution of wealth through law suits! Hooray!

250K + earnings only preserves status quo, what that person would have had anyways. I'm not sure what you're trying to argue.


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## drjeff (Sep 29, 2010)

marcski said:


> I know it to be true. If you get hurt, you will be limited to 250k in pain and suffering.  Otherwise, you will only be able to recover for lost earnings....So, basically, tort reform only protects the rich. Since Joe Schmo, who earns minimum wage, will only be entitled to recoup that minimum wage.  But, "the man" that makes big bucks in salary, is protected because he'll be able to get his lost earnings.  So, yes, I will most definitely keep telling myself this.



But why then should Joe Schmo be "rewarded" (financially atleast) for doing something stupid of his own choice, whereas "the man" gets punished (financially atleast) for having done nothing wrong other than being "the man"????

Tort reform I don't think will stop "frivolous" lawsuits as much as "looser pays" (either damages and/or legal costs) would


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## bvibert (Sep 29, 2010)

marcski said:


> I know it to be true. If you get hurt, you will be limited to 250k in pain and suffering.  Otherwise, you will only be able to recover for lost earnings....So, basically, tort reform only protects the rich. Since Joe Schmo, who earns minimum wage, will only be entitled to recoup that minimum wage.  But, "the man" that makes big bucks in salary, is protected because he'll be able to get his lost earnings.  So, yes, I will most definitely keep telling myself this.



And why should someone be able to sue for more than lost wages (assuming medical bills are covered)?

I don't recall supporting any caps anyway.  The only aspect of tort reform that I recall supporting is making people pay the court costs if they lose a suit that they bring on someone.

Like I said, keep telling yourself that.  I'm not buying it, especially from someone who's livelihood depends on the system as it is now.  I'm sure you believe it to be true, but that doesn't make it reality.


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## bvibert (Sep 29, 2010)

drjeff said:


> Tort reform I don't think will stop "frivolous" lawsuits as much as "looser pays" (either damages and/or legal costs) would



Isn't that a form of 'tort reform'?


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## jaywbigred (Sep 29, 2010)

bvibert said:


> It's a waste of money is what it is.  The only ones who really benefit are the lawyers.



Lawyers do not just
1. Show up
2. Profit

First, the plaintiffs lawyers aren't likely to benefit at all unless a recovery is made. They are taking an enormous risk in preparing for a full-blown trial for which they may never be paid. Depending on what stats you read, only 2-10% of all lawsuits filed in the U.S. make it to trial, so to actually carry out a trial is rare and expensive. With this case going to trial, and having survived CT's frivolous litigation statutes, and having, presumably, survived defendant motions for Summary Judgement or Motions to Dismiss, one would have to assume that the kid's lawyers really do believe they have a color-able claim, and that the court, to a certain degree, agrees. 

On the flip side, insurance companies do not generally want to go to court. If it is in-house lawyers going, they do not benefit at all, and they don't make any extra money. I am sure they would rather stay in their office and go about their normal routine, which I think would generally NOT include trial preparation and the agony and stress involved with same. If they are not in-house lawyers, and are instead a firm hired by the insurance company, then yes, they benefit. But that being said, the type of lawyers who wind up specializing in Tort Defense are NOT the scummy kind out to make a quick buck. There is generally not big money on the defense side of cases like these, especially if you wind up in a full blown trial. 



gmcunni said:


> can't remember where i heard/read this but recall a similar discussion and the proposed solution (practiced in europe??) was that when a plaintiff loses a civil case he is responsible for the court costs (state's and defendant's) so it is no longer "free" to sue.



That is true, in England, I believe. But such a system here has been derided as patently unfair given our socio-economic make-up, because it effectively restricts access to justice for all but the very rich. In other words, the penalties of losing a case are so high that they result in what some argue would be a drastic chilling effect on the bringing of many, many valid suits, which, in the long run, hurts society a lot more than it helps. It might work in a smaller country with more homogeneity and different patterns in the distribution of wealth, but many posit that in the U.S., it would amount to a complete denial of access to the justice process for large swaths of our population based on socio-economic status, and, by extension, race.


If this case is as cut and dry as it is reported in this newspaper (and you have to remind yourself where you are getting your information from), then it seems obvious what the jury will do. But juries get to hear both sides of the story with a degree of detail that newspapers don't even come close to scratching. They get to hear both sides of the story, not just those what the beat writer thinks sound juicy. 

Further, if some ridiculous award were to come back from the jury, you have to question who makes up that jury and what they were thinking. We live in a society where the prevalent attitude towards jury duty is "how can I get out of it" such that juries that do wind up sitting are often not true "juries of our peers." If rational, educated people weren't so good at skipping out on jury duty, then we might have more rational, educated jury awards. If the jury awards became more realistic and shrunk, you'd see lawyers taking less cases and insurance rates going down. Reform juries, and everything else falls into line, imo.

Lastly, our justice system has many, many flaws, but I still am of the belief that it is among the best and most sophisticated justice systems in the world. Our tort law is what it is, many people hate it, but it has forced us, over the years, to conduct business in a certain way that probably has provided us with a leg up on some of our competitors. We are global leaders in tourism because people know our amusement parks and resorts and national parks and malls and stadiums and theaters and restaurants are safe; we are a global leader in many product areas in part because consumers know our tort laws and product liability laws protect them and govern the products we produce.

In a Utopian society there would be no justice system because there would be no injustice or even perceived injustice. But we live in reality, and in that reality we need a justice system. I am glad ours is what it is, because I believe it aids, not hinders, the American way of life, which I believe in. We all pine for some golden age where everyone took responsibility for their actions and law suits were less prevalent. I would argue that such an age never existed. During such times, people solved their disputes outside of court, more frequently, often using violent means. That, or they suffered in silence even when they were certainly not at fault. In other words, during this perceived golden age, we were a much less evolved society and country. The evolution of our justice system is a result of our evolution and growth as a country and as a world leader.

Anyway, I am ranting now, this is nothing personal to anyone here. I just believe in our justice system and believe that if everything is as it appears in these newspaper articles, justice will be served.


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## marcski (Sep 29, 2010)

bvibert said:


> And why should someone be able to sue for more than lost wages (assuming medical bills are covered)?



Because they got hurt and suffered as the result of someone else's fault.  The law cannot make that person whole again...but it can force the wrongdoer ("like evildoer") to pay damages for pain and suffering.  What if that person was a student, never worked a day in his life?  Then how would you compensate him/her ? 

You think an injured person should be limited to just recovering his lost wages and that's it?  He shouldn't be compensated in any other way??  What about having to endure medical treatment, surgeries or whatever else might have happened to that person.  What if that person was left in a wheelchair....or worse was a vegetable?  What about his future medical bills? 

I like hearing other people's arguments.  It's cool to disagree.  The one who listens and surrounds himself with only like thinkers is a fool.


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## Anklebiter (Sep 29, 2010)

When I was 16, I suffered a compression facture of the T12 vertebrae. I was skiing down to the lodge (Devon Hill) for a bathroom break and saw a jump. Without scouting out the jump and landing first, I hit it pretty fast. The end result was I hit a patch of ice. I slide over dropoff and hit several trees on the way down. It's was all my own fault, nobody else was to blame for my stupidity. Luckly, I was only out of commission for 6 weeks.

I feel bad for this young man and the injuries that he incurred, but this was by his own doing.


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## CollegeKid (Sep 29, 2010)

Ultimately, I think this is a frivolous lawsuit and this and those like it only have a detrimental impact on the resort industry.  While I feel bad for the injured and his family, it is not the responsibility of the ski resort.  It is important to separate between legal liability and paying out just because the jury feels the family should be able to recoup money.  It hurts the resort industry to be faced with lawsuits like this due to the adverse financial impact they feel.  Keep in mind, if Sundown has to payout in this lawsuit, they will very likely face a negative impact financially and could possibly lay employees off and other cost cutting.  It would certainly negatively affect many people at the mountain if Sundown would have to pay out.


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## HowieT2 (Sep 29, 2010)

It is really a little frightening the amount of disinformation/propaganda put out by the tort deformers and that so many believe what they hear.
Loser pays-the only ones who could afford a lawsuit would be big business and the ultra rich.  99% of the population of this country would be shut out of court.  GE pollutes your drinking water making your family sick and destroying the value of your home-tough shit.  fedex truck ran over little johnny-so sorry.

Frivilous lawsuits- first of all, there are laws against frivilous lawsuits.  They are forbidden and the lawyer and the client can be ordered to pay the other sides costs and sanctions.  Why would a plaintiffs lawyer bring a case in which he must expend his own money and work on for years, if it has no merit? There are orders of magnitude more frivolous defenses than there are Frivilous claims.  The whole issue is a myth made up by the media supported by a few anecdotes.  

Insurance companies are investment vehicles.  They collect premiums to invest them and reap the profits of their investments.  Historically it is a very very profitable industry.  Insurance rates go up to reflect inflation and when their investments arent performing well.  The amount paid out in claims hasn't gone up significantly in 30 years.  States that have caps on pain and suffering do not have lower insurance rates.

caps on pain and suffering-  this is brilliant, 10 year old girl loses an arm, sorry nothing for you.  grandma killed nada,  Mom paralyzed-what good would money do for her anyway. ski bum will never ski again, too bad so sad.  rich executive can't work-we have a winner

I dont think this particular lawsuit is a winner.  In NY or VT I can't imagine it would have even made it to trial.  But if there is a recovery, a good portion of any recovery will go to the health insurance company and/or medicare to pay back the astronomical medical expenses involved.

sorry for the rant


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## bvibert (Sep 29, 2010)

jaywbigred said:


> Lawyers do not just
> 1. Show up
> 2. Profit



Never said they did, or implied it.



jaywbigred said:


> First, the plaintiffs lawyers aren't likely to benefit at all unless a recovery is made. They are taking an enormous risk in preparing for a full-blown trial for which they may never be paid. Depending on what stats you read, only 2-10% of all lawsuits filed in the U.S. make it to trial, so to actually carry out a trial is rare and expensive. With this case going to trial, and having survived CT's frivolous litigation statutes, and having, presumably, survived defendant motions for Summary Judgement or Motions to Dismiss, one would have to assume that the kid's lawyers really do believe they have a color-able claim, and that the court, to a certain degree, agrees.
> 
> On the flip side, insurance companies do not generally want to go to court. If it is in-house lawyers going, they do not benefit at all, and they don't make any extra money. I am sure they would rather stay in their office and go about their normal routine, which I think would generally NOT include trial preparation and the agony and stress involved with same. If they are not in-house lawyers, and are instead a firm hired by the insurance company, then yes, they benefit. But that being said, the type of lawyers who wind up specializing in Tort Defense are NOT the scummy kind out to make a quick buck. There is generally not big money on the defense side of cases like these, especially if you wind up in a full blown trial.



So, assuming the plaintiff loses (as any sensible person would assume), then who benefits from a frivolous lawsuit like this?  In your analysis no one does.  The plaintiff's lawyer isn't going to be looking to get paid for his time even if he loses??  I find that hard to believe...



jaywbigred said:


> I just believe in our justice system and believe that if everything is as it appears in these newspaper articles, justice will be served.



IMHO the only way that justice could possibly be served is if the defendants (and their legal council) are compensated for both their costs and lost time dealing with this.  Assuming the plaintiff loses....

I'm not trying to be an asshole, I just don't have nearly the confidence in our legal system as you do...


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## bvibert (Sep 29, 2010)

marcski said:


> The one who listens and surrounds himself with only like thinkers is a fool.



Exactly

ie; lawyers hanging around with each other tooting each others horns, all while knowing nothing about the Joe Schmoes who's interests they claim to protect. 

:lol:


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## bvibert (Sep 29, 2010)

HowieT2 said:


> Frivilous lawsuits- first of all, there are laws against frivilous lawsuits.  They are forbidden and the lawyer and the client can be ordered to pay the other sides costs and sanctions.  Why would a plaintiffs lawyer bring a case in which he must expend his own money and work on for years, if it has no merit? There are orders of magnitude more frivolous defenses than there are Frivilous claims.  The whole issue is a myth made up by the media supported by a few anecdotes.



I hate to break it to you, but the frivolous lawsuit detector is very very broken.


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## legalskier (Sep 29, 2010)

bvibert said:


> I hate to break it to you, but the frivolous lawsuit detector is very very broken.



As skiers, of course our emotions tell us this case _feels frivolous_, because none of us (hopefully) would have done what this kid did. 
But_ legally_, the case isn't frivolous. As I pointed out earlier, it has survived pre-trial motions and made it to a jury. This means that the judge reviewed the law I posted earlier and has denied the inevitable motions for summary judgment by Sundown (i.e. a legal request that it be dismissed prior to trial because there would be nothing for a jury to mull over). Thus, _according to the judge_ the plaintiff has stated a "colorable claim for relief," as JayW discussed. Frankly, this troubles me.
Does it sit well for us skiers? Obviously not. 
Are we rooting for Sundown? Heck yeah (vicariously for me). Hopefully, Sundown's lawyer scored points today on his cross-examination of the plaintiff, without engendering sympathy (the wild card DrJeff mentioned) for the kid by roughing him up in front of the jury. We'll see in tomorrow's news. 

Btw, doesn't Greg have a contact at Sundown who could give him some more info to supplement the shallow reporting we've read? There's probably something that they could give us even though the trial is in progress....


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## bvibert (Sep 29, 2010)

legalskier said:


> As skiers, of course our emotions tell us this case _feels frivolous_, because none of us (hopefully) would have done what this kid did.
> But_ legally_, the case isn't frivolous. As I pointed out earlier, it has survived pre-trial motions and made it to a jury. This means that the judge reviewed the law I posted earlier and has denied the inevitable motions for summary judgment by Sundown (i.e. a legal request that it be dismissed prior to trial because there would be nothing for a jury to mull over). Thus, _according to the judge_ the plaintiff has stated a "colorable claim for relief," as JayW discussed. Frankly, this troubles me.
> Does it sit well for us skiers? Obviously not.
> Are we rooting for Sundown? Heck yeah (vicariously for me). Hopefully, Sundown's lawyer scored points today on his cross-examination of the plaintiff, without engendering sympathy (the wild card DrJeff mentioned) for the kid by roughing him up in front of the jury. We'll see in tomorrow's news.
> ...



Just because it made to trial by jury does not exclude it from being frivolous, particularly when the system is as broken as it is now.  You can't use the legal system as proof that the legal system isn't broken... :-?

I highly doubt my contact at Sundown would speak about a lawsuit against Sundown, particularly an ongoing one, that's why I haven't asked him.  He reads this forum often and has surely read this thread.  I don't blame him for not wanting to chime in, but if he wants to he knows where to go.


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## mondeo (Sep 29, 2010)

marcski said:


> Because they got hurt and suffered as the result of someone else's fault. The law cannot make that person whole again...but it can force the wrongdoer ("like evildoer") to pay damages for pain and suffering. What if that person was a student, never worked a day in his life? Then how would you compensate him/her ?
> 
> You think an injured person should be limited to just recovering his lost wages and that's it? He shouldn't be compensated in any other way?? What about having to endure medical treatment, surgeries or whatever else might have happened to that person. What if that person was left in a wheelchair....or worse was a vegetable? What about his future medical bills?
> 
> I like hearing other people's arguments. It's cool to disagree. The one who listens and surrounds himself with only like thinkers is a fool.


I'm not sure anyone's really arguing _against_ a cost + c model. To some degree, if someone is at fault for disabling a college student who happens to be working a minium wage job, such that they are no longer capable of using their eventual degree, I'd argue that some componsation for opportunity cost is reasonable. All medical costs, sure.

I suspect a lot of the comments here are driven more from a Blonski-type case for a lot of people, where she got $150K in economic damages and $2.75 million in non-economic (pain and suffering.) This is a woman who pretty much regained all physical capability to my knowledge, still works, still has the audacity to go on group road rides in Rocky Hill. Without even considering the fact that it was her own damn fault, please, please justify to me how she should have the right to $2.75 million of central Connecticut residents' money for "pain and suffering" for injuries that, given her activity level, have seemed to have cleared up in a relatively short period of time.


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## legalskier (Sep 29, 2010)

bvibert said:


> So, assuming the plaintiff loses (as any sensible person would assume), then who benefits from a frivolous lawsuit like this?  In your analysis no one does.  The plaintiff's lawyer isn't going to be looking to get paid for his time even if he loses??  I find that hard to believe...



That's why JayW said he/she is taking a _huge risk_ by going to trial. This is high stakes at this point. Much stress.



bvibert said:


> IMHO the only way that justice could possibly be served is if the defendants (and their legal council) are compensated for both their costs and lost time dealing with this.  Assuming the plaintiff loses....



The defendant, _effectively_, is the insurance company. They stand in the shoes of  Sundown and provided the legal representation. Brian, they _are_ getting compensated; in fact, _they already got compensated_ in advance by _charging insurance premiums_ to Sundown for the service they provide--"insurance."  
Please, don't get too broken up for insurance companies.  The last time I drove though Hartford (August), every large building I saw had the name of an insurance company on it. My friend, they ain't exactly hurting. :smile: Cripes, I think they _built_ that city! (Whoa- I think the insurance company here _ is *The Hartford*_.) Come to think of it, the biggest building in all of Newark is the Prudential Building (remember how the jihadis tried to blow it up?...but I digress).
The bottom line is, as much as we feel that the plaintiff was at fault here, he still has a right to seek redress in the courts for what he believes is a valid claim.  After all, as JayW pointed out, it's a helluva lot better than settling our differences out on the street....





....like in "Frankenstein."
OK, gtg again- dinner's waiting.


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## mondeo (Sep 29, 2010)

bvibert said:


> Just because it made to trial by jury does not exclude it from being frivolous, particularly when the system is as broken as it is now. You can't use the legal system as proof that the legal system isn't broken... :-?
> 
> I highly doubt my contact at Sundown would speak about a lawsuit against Sundown, particularly an ongoing one, that's why I haven't asked him. He reads this forum often and has surely read this thread. I don't blame him for not wanting to chime in, but if he wants to he knows where to go.


Problem is the definition of frivolous lawsuit. Lawyers will be better than I am at this, obviously, but stupid != frivolous. Ski resorts do have some responsibility for providing reasonably safe conditions. If Sundown made a massive booter onto a flat landing, they'd be responsible for the injuries because of an improperly made jump. Some reasonable level of marking is rational - unmarked, unexpected cliffs in the middle of a beginner trail would be another case of a winning lawsuit waiting to happen. Just because a lawsuit seems like a born loser to us does not make it frivolous. Guilt is not for the judge to decide before a trial.

Frivolous lawsuits aren't the issue. Lawsuits as a means of wealth generation are. I think it's wrong if you're disavowing personal responsibility, but lawsuits to cover costs I don't have much of a problem with. It's the $500 to cover doctors visits and $3 million to cover pain and suffering from a sprained ankle that's the issue.


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## mondeo (Sep 29, 2010)

legalskier said:


> That's why JayW said he/she is taking a _huge risk_ by going to trial. This is high stakes at this point. Much stress.
> 
> 
> 
> ...


Funny. Lawyers telling us not to feel bad for insurance companies because they have to pay lawyers.


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## legalskier (Sep 29, 2010)

bvibert said:


> You can't use the legal system as proof that the legal system isn't broken... :-?.



Then for crying out loud who are you going to use?  The judge isn't "in the pocket" of the plaintiff. Don't go getting all cynical on us now.
If you go over to the courthouse & talk to the lawyers & read through the court file (it's public record), it might start to make more sense. Short of that, I've gone about as far as I can in helping you guys understand this situation...as I understand it from the scant reporting and the statute. 
Nighty-night, sleep tight. :smile:


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## bvibert (Sep 29, 2010)

legalskier said:


> That's why JayW said he/she is taking a _huge risk_ by going to trial. This is high stakes at this point. Much stress.



Much stress because they know it's frivolous, perhaps, and they know their only hope is to get some sympathy from the jury, perhaps... just maybe??? 



legalskier said:


> The defendant, _effectively_, is the insurance company. They stand in the shoes of  Sundown and provided the legal representation. Brian, they _are_ getting compensated; in fact, _they already got compensated_ in advance by _charging insurance premiums_ to Sundown for the service they provide--"insurance."
> Please, don't get too broken up for insurance companies.  The last time I drove though Hartford (August), every large building I saw had the name of an insurance company on it. My friend, they ain't exactly hurting. :smile: Cripes, I think they _built_ that city! (Whoa- I think the insurance company here _ is *The Hartford*_.) Come to think of it, the biggest building in all of Newark is the Prudential Building (remember how the jihadis tried to blow it up?...but I digress).



You guys are fooling yourselves if you think the insurance company doesn't raise rates as a result of having to defend against these lawsuits, especially when you consider that they're not that uncommon.


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## gmcunni (Sep 29, 2010)

legalskier said:


> . . . & read through the court file (it's public record), it might start to make more sense.



does this stuff get published on the interweb?


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## bvibert (Sep 29, 2010)

legalskier said:


> Then for crying out loud who are you going to use?  The judge isn't "in the pocket" of the plaintiff. Don't go getting all cynical on us now.
> If you go over to the courthouse & talk to the lawyers & read through the court file (it's public record), it might start to make more sense. Short of that, I've gone about as far as I can in helping you guys understand this situation...as I understand it from the scant reporting and the statute.
> Nighty-night, sleep tight. :smile:



How about using common sense??  You're so entrenched in the system that you can't see just how absurd it is.  I understand the basics of the situation as it's 'supposed' to work, my point all along is that the system doesn't 'work'.  Using the system to prove that the system works when it defies common sense does not hold any weight for me.  I'm sorry you guys just can't see that.


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## mondeo (Sep 29, 2010)

mondeo said:


> Funny. Lawyers telling us not to feel bad for insurance companies because they have to pay lawyers.


Just to elaborate on this a little, the big thing lawyers and insurers (lets throw bankers in there too, while we're at it) have in common is that they don't actually produce anything. There is nothing tangible that comes out of their work.

The reason all three exist, though, is that they enable the proper functioning of modern society. Insurers allow entities to to share risk, lawyers help ensure the rights of legal entities, bankers facilitate the movement of money, essentially facilitating commerce. They all grease the wheels of society, but because that's all they do, they're all looked down upon by the rest of society to some degree. The whole "all they do is take people's money and don't actually give us anything in return" argument. So it's pretty hypocritical of a lawyer to take that view of insurers.


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## bvibert (Sep 29, 2010)

mondeo said:


> Problem is the definition of frivolous lawsuit. Lawyers will be better than I am at this, obviously, but stupid != frivolous. Ski resorts do have some responsibility for providing reasonably safe conditions. If Sundown made a massive booter onto a flat landing, they'd be responsible for the injuries because of an improperly made jump. Some reasonable level of marking is rational - unmarked, unexpected cliffs in the middle of a beginner trail would be another case of a winning lawsuit waiting to happen. Just because a lawsuit seems like a born loser to us does not make it frivolous. Guilt is not for the judge to decide before a trial.
> 
> Frivolous lawsuits aren't the issue. Lawsuits as a means of wealth generation are. I think it's wrong if you're disavowing personal responsibility, but lawsuits to cover costs I don't have much of a problem with. It's the $500 to cover doctors visits and $3 million to cover pain and suffering from a sprained ankle that's the issue.



Okay, I'll give you that I guess.

I still think it's frivolous though...


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## legalskier (Sep 29, 2010)

gmcunni said:


> does this stuff get published on the interweb?



I checked that for you: the Connecticut state court system (like most) does have electronic filing, but it's a paid service. Here's the link: http://www.jud.ct.gov/external/super/e-services/efile/.  The physical file (i.e. hard copy) probably can be accessed free of charge in the courthouse.
I tried to google this case earlier today but only came up with the news accounts.


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## legalskier (Sep 29, 2010)

mondeo said:


> So it's pretty hypocritical of a lawyer to take that view of insurers.



I don't get paid by insurance companies; lots of lawyers don't. 
And my clients are happy to have me standing next to them. I'm usually the only one.


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## mister moose (Sep 29, 2010)

legalskier said:


> The defendant, _effectively_, is the insurance company. They stand in the shoes of  Sundown and provided the legal representation. Brian, they _are_ getting compensated; in fact, _they already got compensated_ in advance by _charging insurance premiums_ to Sundown for the service they provide--"insurance."
> Please, don't get too broken up for insurance companies.  The last time I drove though Hartford (August), every large building I saw had the name of an insurance company on it. My friend, they ain't exactly hurting. :smile: Cripes, I think they _built_ that city! (Whoa- I think the insurance company here _ is *The Hartford*_.) Come to think of it, the biggest building in all of Newark is the Prudential Building (remember how the jihadis tried to blow it up?...but I digress).



And this from what sounds like an educated in the topic poster.

Yes, some insurance companies have done well over the years.  That doesn't prevent both the law of supply and demand from affecting rates in the long term* ( I have seen this to be true), and the costs of high awards being passed on to the policy holders.

One huge problem has been juries awarding large punishment damage awards with no regard for where the money is coming from because the 'big bad company' can afford it.  I personally have seen an industry almost wiped off the face of the earth because of several stupid awards, rates went through the roof the next year, and no one could afford the insurance.  This was not a case of evil doing deserving to get punished.  It was a case of a celebrity doing something over his head, stupid, and negligent.  Yet his lawyers still won.

You can argue what the parameters of tort reform should be, but in my mind there is no doubt that some sort of tort reform is needed.  There has been some incremental change in the last 20 years, (just look at the ski industry), but there needs to be more.  Personal Injury litigation should not be the equivalent of Lotto.  Over the long term, Insurance companies _do not _pay court awards, their policyholders do.

*When insurance rates rise to a point where the existing carriers are making a handsome profit, more carriers enter the market, and compete by lowering prices.  This continues until the rate of return for the insurance companies drops below what investors are willing to earn, and rates bottom out.  Then a big disaster happens, like hurricane Andrew and  Hugo in Florida, and most of the carriers bail on writing new policies.  Rates rise to cover the loss.  Profitability returns, and attract more carriers back in the market.  The dollars are large, but the rates of return are still what dictates policy premiums.  It is very much a supply and demand situation.


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## mondeo (Sep 29, 2010)

legalskier said:


> I don't get paid by insurance companies; lots of lawyers don't.
> And my clients are happy to have me standing next to them. I'm usually the only one.


And in this case, Sundown is happy to have their insurance agent.

I'm not saying lawyers are always paid by insurance companies, I'm saying that the two roles are similar in that, until you need one, it's pretty easy to detest them by viewing them as drains on society. Which is what you're saying the insurance companies are. Pot, meet kettle.


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## SkiDork (Sep 29, 2010)

Wow!


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## legalskier (Sep 29, 2010)

mister moose said:


> And this from what sounds like an educated in the topic poster.



Thank you, "_mister moose_."


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## legalskier (Sep 29, 2010)

mister moose said:


> Yes, some insurance companies have done well over the years.  That doesn't prevent both the law of supply and demand from affecting rates in the long term* ( I have seen this to be true), and the costs of high awards being passed on to the policy holders.
> One huge problem has been juries awarding large punishment damage awards with no regard for where the money is coming from because the 'big bad company' can afford it.  I personally have seen an industry almost wiped off the face of the earth because of several stupid awards, rates went through the roof the next year, and no one could afford the insurance.  This was not a case of evil doing deserving to get punished.  It was a case of a celebrity doing something over his head, stupid, and negligent.  Yet his lawyers still won.
> You can argue what the parameters of tort reform should be, but in my mind there is no doubt that some sort of tort reform is needed.  There has been some incremental change in the last 20 years, (just look at the ski industry), but there needs to be more.  Personal Injury litigation should not be the equivalent of Lotto.  Over the long term, Insurance companies _do not _pay court awards, their policyholders do.
> *When insurance rates rise to a point where the existing carriers are making a handsome profit, more carriers enter the market, and compete by lowering prices.  This continues until the rate of return for the insurance companies drops below what investors are willing to earn, and rates bottom out.  Then a big disaster happens, like hurricane Andrew and  Hugo in Florida, and most of the carriers bail on writing new policies.  Rates rise to cover the loss.  Profitability returns, and attract more carriers back in the market.  The dollars are large, but the rates of return are still what dictates policy premiums.  It is very much a supply and demand situation.



This thread has really gone far afield, but please, tell me one insurance company that _went under completely due to large jury payouts_. They will cry wolf when they see trouble coming; that's to get the changes they want. But they never really go under. AIG doesn't count--it _almost_ went under due to the unbridled greed of one of its units, which the taxpayers got fleeced for when we bailed them out.
I'm not sure what case(s) you're alluding to about "stupid awards," but perhaps if you gave something more than cryptic references an explanation can be found. 
Speaking of so-called runaway juries, in another thread we discussed the McDonalds Coffee Cup case, where the jury did make a large award. But that was promptly dismantled on appeal, something they don't mind you not knowing about. That way, when you sit on a panel you may keep the award low, not wanting to be branded the next out of control jury. Checks and balances are built into the system.
I'll speak from my own experience. Years ago I was sitting in a traffic jam in my old Ford Escort when I was creamed from behind by a Lincoln Continental. Liability was clear, as were my injuries. But nearly three years later, after much rehab and pain management, I ended up with all of $5k. Maybe I should have taken it to trial; next time I will.
I sat on a jury once in a sex harassment case, which consumed a month of my life. We awarded a fraction--a very small fraction--of the huge amount requested by the plaintiff. She was visibly upset, but I'm sure some champagne was cracked open later at the insurance company's office. 
Personally, my rates have remained stable over the years. As I say, I keep hearing about these mythical runaway juries, just as I've heard of unicorns. But in all my years hanging around the justice system, I've never actually seen one in person.

Btw, in the future I'll be staying on topic.


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## legalskier (Sep 29, 2010)

mondeo said:


> Which is what you're saying the insurance companies are.



No I'm not; go back and read what I wrote.


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## mondeo (Sep 29, 2010)

legalskier said:


> As I say, I keep hearing about these mythical runaway juries, just as I've heard of unicorns. But in all my years hanging around the justice system, I've never actually seen one in person.


 http://forums.alpinezone.com/showthread.php?t=76879


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## Glenn (Sep 30, 2010)

This thread DELIVERS! 

I think we do need tort reform. If all lawsuites were 100% with merit we wouldn't need it. If someone sues McDonald's for coffee being too hot, we need tort reform. I'm sure Mark E Salamon and John Haymond can get a second job to make up for the abulance chasing they'll no longer be doing. 

I think there needs to be some type of disincentive added to the equation.


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## skidmarks (Sep 30, 2010)

*Blonski!*

Hope the hell Stratton and Faxon aren't on it!


 http://www.strattonfaxon.com/news/2010-news/cyclist-brokenneck5.2010.pdf


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## severine (Sep 30, 2010)

skidmarks said:


> Hope the hell Stratton and Faxon aren't on it!
> 
> 
> http://www.strattonfaxon.com/news/2010-news/cyclist-brokenneck5.2010.pdf


Just love this quote in their own publication:


> Stratton said that during the trial he had
> to overcome comments Blonski had made
> on her public access mountain biking show
> regarding the accident.



Or in other words, she already implicated herself and kind of messed up the case.

And, of course:


> Stratton said Blonski was a “great client”
> and told him that establishing the MDC’s
> liability was more important to her than
> the money.
> ...


But that $2.9million will sure help overcome any bad feelings about that...


----------



## speden (Sep 30, 2010)

I think one of the main drivers of these type of lawsuits is the quirky, employer based, for profit health insurance we have.  If everyone had something like medicare, then people wouldn't be wiped out financially by a stupid accident like this, and they'd be a lot less likely to sue.

Another big contributor is the jury based award system.  Juries don't know the appropriate amount of money to award in these cases, since they are being asked to be experts on something they have never done before in their lives.  It's not that hard to play on people's sympathies and get a fairly big award, since the juries can rationalize that this is the only way the person with the horrible injury can get the money they need, even if they don't think the party being sued is really that culpable.  Juries should be allowed to get an unbiased recommendation from a professional court employed claims adjuster when making an award.


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## mondeo (Sep 30, 2010)

speden said:


> I think one of the main drivers of these type of lawsuits is the quirky, employer based, for profit health insurance we have. If everyone had something like medicare, then people wouldn't be wiped out financially by a stupid accident like this, and they'd be a lot less likely to sue.


So legitamately at fault parties won't be responsible at all, and costs will fall to the taxpayers! Hooray!

Again, the problem with lawsuits aren't the ones looking to recoup costs. It's the egregious pain and suffering verdicts. The Blonski case is a perfect example, where pain & suffering constituted over 18x the economic damages. She wanted to sue for $150K to recover medical costs and lost wages? Eh, she's still wrong, but whatever. But $2.75 million, just because? I thought she just wanted to be recognized for not being at fault, what's the pain and suffering for?


----------



## bvibert (Sep 30, 2010)

legalskier said:


> As I say, I keep hearing about these mythical runaway juries, just as I've heard of unicorns. But in all my years hanging around the justice system, I've never actually seen one in person.





mondeo said:


> http://forums.alpinezone.com/showthread.php?t=76879



Thank you Mondeo!  Anyone who can look at that case and tell me that the system is not completely effed up is a damn fool.


----------



## bvibert (Sep 30, 2010)

mondeo said:


> So legitamately at fault parties won't be responsible at all, and costs will fall to the taxpayers! Hooray!
> 
> Again, the problem with lawsuits aren't the ones looking to recoup costs. It's the egregious pain and suffering verdicts. The Blonski case is a perfect example, where pain & suffering constituted over 18x the economic damages. She wanted to sue for $150K to recover medical costs and lost wages? Eh, she's still wrong, but whatever. But $2.75 million, just because? I thought she just wanted to be recognized for not being at fault, what's the pain and suffering for?



Even suing to recover legitimate costs when you're the party at fault is screwed up.


----------



## speden (Sep 30, 2010)

mondeo said:


> So legitamately at fault parties won't be responsible at all, and costs will fall to the taxpayers! Hooray!



Well the taxpayers end up paying one way or another anyway.  Pick your poison, high insurance rates, coverage limits, co-pays, bankrupt ski areas, sky high lawyer fees, crazy jury awards, bans on out of bounds skiing, etc.

I already pay a lot in medicare taxes, but get no direct benefits unless I'm lucky enough to live to old age.  Would make more sense to give everyone benefits and eliminate all the crap that comes with for profit insurance.  Why not just acknowledge that freak accidents happen and have a medical system in place that can deal with it without all the overhead of greedy insurance companies, expensive trials, etc.

Legitimate at fault parties can still be sued, you'd just decrease the need to sue not at fault "deep pocket" defendants if our medical coverage in the U.S. wasn't so spotty.


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## drjeff (Sep 30, 2010)

bvibert said:


> Even suing to recover legitimate costs when you're the party at fault is screwed up.



Welcome to modern day America where for many, even the notion of personal responsibility/accountability, is an unknown concept  :smash:


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## gmcunni (Sep 30, 2010)

my father inlaw was interviewing for jury duty a several years ago.  a woman had gotten hurt in a accident and the husband filed suit for $$ compensation due to his wife not being able to have sex with him.  my father in-law basically laughed at the allegation during his interview session and was quickly eliminated as a juror on the case.


----------



## severine (Sep 30, 2010)

gmcunni said:


> my father inlaw was interviewing for jury duty a several years ago.  a woman had gotten hurt in a accident and the husband filed suit for $$ compensation due to his wife not being able to have sex with him.  my father in-law basically laughed at the allegation during his interview session and was quickly eliminated as a juror on the case.


Did she counter sue for all the years of housework for which she wasn't compensated?


----------



## gmcunni (Sep 30, 2010)

severine said:


> Did she counter sue for all the years of housework for which she wasn't compensated?



he wasn't able to compensate her any longer, that was probably why he filed suit ;-)


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## marcski (Sep 30, 2010)

skidmarks said:


> Hope the hell Stratton and Faxon aren't on it!
> 
> 
> http://www.strattonfaxon.com/news/2010-news/cyclist-brokenneck5.2010.pdf



Interesting that the article states the MDC didn't offer any expert testimony.  None regarding liability and none regarding damages?  Undoubtedly, they are appealing the jury's verdict.

And as someone else said above, no one ever hears about those appeals when the appellate courts knock down jury awards. Like in the McD's coffee case.  People also didn't hear that McDonald's own expert witness in that case said that the coffee they served this woman was so hot that it was unfit for human consumption and that the appellate Court drastically reduced the punitive damage award.

http://www.lectlaw.com/files/cur78.htm

http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants

http://www.bbc.co.uk/dna/h2g2/A429950


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## drjeff (Sep 30, 2010)

marcski said:


> Interesting that the article states the MDC didn't offer any expert testimony.  None regarding liability and none regarding damages?  ]



I'm not quite sure how they would have offered "expert" testimony on a yellow gate that's been there, without problems, for decades with quite literally hundreds, if not thousands of people per day during the non snowy months, safely and successfully negotiating their way by it.

In a sense, this specific case would be the equivalent of someone, while not paying attention riding their bike, crashing into a stop sign that's been at the same location for decades, and then blaming the town that the stop sign was in for their crash


----------



## marcski (Sep 30, 2010)

drjeff said:


> I'm not quite sure how they would have offered "expert" testimony on a yellow gate that's been there, without problems, for decades with quite literally hundreds, if not thousands of people per day during the non snowy months, safely and successfully negotiating their way by it.
> 
> In a sense, this specific case would be the equivalent of someone, while not paying attention riding their bike, crashing into a stop sign that's been at the same location for decades, and then blaming the town that the stop sign was in for their crash



Exactly that.  Have an expert...an engineer come in and testify how the gate was there...There was nothing blocking anyone's view of it.  How it was not in a hazardous condition and how it contrasted sufficiently with the background environment so that any reasonable person who would approach the gate, would have and should have seen it and avoided crashing into it.

Also, why didn't they have their own medical expert testify?  There was nothing to refute the plaintiff's experts version of her condition and future prognosis.

Listen, I never supported her case...and if you look back in this thread at my initial post, I said the sundown case is a big loser too.  All I am saying is that there is heck of a lot of misinformation out there....


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## HowieT2 (Sep 30, 2010)

marcski said:


> Interesting that the article states the MDC didn't offer any expert testimony.  None regarding liability and none regarding damages?  Undoubtedly, they are appealing the jury's verdict.
> 
> And as someone else said above, no one ever hears about those appeals when the appellate courts knock down jury awards. Like in the McD's coffee case.  People also didn't hear that McDonald's own expert witness in that case said that the coffee they served this woman was so hot that it was unfit for human consumption and that the appellate Court drastically reduced the punitive damage award.
> 
> ...



Precisely, the public perception of the issue does not reflect reality.  The newspaper reports when a jury awards an outrageous sum but never about how the award was reduced by the trial court or on appeal.  Why? because the insurance industry and big business through the US chamber of commerce want potential jurors and voters to think the system is out of control so that they can save some money.  
Take this case we are talking about, none of us know the real facts,  the evidence admitted into court.  all we know is what is reported by someone in the newspaper.  Same thing with the infamous Mcdonalds case.  without getting to into it, the real evidence was that mcdonalds was superheating their coffee so that it would still be nice and hot 20 minutes after it was sold.  The coffee was so hot it caused third degree burns in a matter of seconds as opposed to 20 seconds for normally hot coffee.  So instead of being able brush off the spilled coffee before injury, the victim was instantly scalded. Mcdonalds knew this and so the jury punished it by awarding punitive damages of 6 million dollars, equal to one days profit from coffee sales.  This was later thrown out by the court and grandma got the whopping sum of something like 285k which had to pay expenses and her attorneys fee, for the 7 surgeries she needed on her vagina.  I'm sure she feels like she won the lottery for that.


----------



## bvibert (Sep 30, 2010)

So, the proof that the system isn't broken is that once a verdict is reached it's appealed anyway?  And then often someone with common sense comes up with a realistic ruling?  

Sounds like a huge waste of time and money to me.  If it worked right the first time there wouldn't be need for all the appeals.  Keeps the lawyers busy though, so I guess there's that...


----------



## legalskier (Sep 30, 2010)

marcski said:


> Interesting that the article states the MDC didn't offer any expert testimony.  None regarding liability and none regarding damages?  Undoubtedly, they are appealing the jury's verdict.



It also states, "the jury took just an hour-and-a-half to deliberate."  This speaks volumes. The seats in the jury room were barely warm before they came out and slam-dunked the MDC.


----------



## Black Phantom (Sep 30, 2010)

bvibert said:


> So, the proof that the system isn't broken is that once a verdict is reached it's appealed anyway?  And then often someone with common sense comes up with a realistic ruling?
> 
> Sounds like a huge waste of time and money to me.  If it worked right the first time there wouldn't be need for all the appeals.  Keeps the lawyers busy though, so I guess there's that...



I feel bad for this kid.


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## legalskier (Sep 30, 2010)

Back on topic, here's a link to the court's website that summarizes the intense pre-trial activity that's been going on in the Sundown matter. As you can see, their lawyers have been hard at work.

*http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=LLICV085003453S*


----------



## tjf67 (Sep 30, 2010)

legalskier said:


> It also states, "the jury took just an hour-and-a-half to deliberate."  This speaks volumes. The seats in the jury room were barely warm before they came out and slam-dunked the MDC.



Are you saying Jurors are dumb again?


----------



## tjf67 (Sep 30, 2010)

legalskier said:


> Back on topic, here's a link to the court's website that summarizes the intense pre-trial activity that's been going on in the Sundown matter. As you can see, their lawyers have been hard at work.
> 
> *http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=LLICV085003453S*



YUP creating billable hours.


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## legalskier (Sep 30, 2010)

Here's a link to a synopsis of the law of ski liability in the State of Connecticut:

*http://www.bpslawyers.com/index.cfm/hurl/SectionID=9/ArticleID=143*


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## legalskier (Sep 30, 2010)

tjf67 said:


> YUP creating billable hours.



...or trying to avoid another Blonski result.


----------



## mister moose (Sep 30, 2010)

drjeff said:
			
		

> I'm not quite sure how they would have offered "expert" testimony on a yellow gate that's been there, without problems, for decades with quite literally hundreds, if not thousands of people per day during the non snowy months, safely and successfully negotiating their way by it.
> 
> In a sense, this specific case would be the equivalent of someone, while not paying attention riding their bike, crashing into a stop sign that's been at the same location for decades, and then blaming the town that the stop sign was in for their crash



It sounds funny, but I was asked by the State DOT to move a stone wall back 15 ft for that exact reason.  They have lost cases where motorists have contacted man made objects in the road ROW and lost the case.  Even the specter of a case is enough to change policy, even if the case is frivolous.  This is part of the problem, it's not just the frivolous lawsuit, it's the threat of the frivolous lawsuit that will change policy.  The stone wall was approximately 150 years old, by the way.



			
				HowieT2 said:
			
		

> Precisely, the public perception of the issue does not reflect reality.  The newspaper reports when a jury awards an outrageous sum but never about how the award was reduced by the trial court or on appeal.  Why? because the insurance industry and big business through the US chamber of commerce want potential jurors and voters to think the system is out of control so that they can save some money.




I'm sorry, why should any defendant even have to go on appeal at all to nullify an outrageous decision?  The case shouldn't have even made it to trial.  It is the threat of these awards that affect insurance company's behavior, as I discuss later.



			
				HowieT2 said:
			
		

> Take this case we are talking about, none of us know the real facts,  the evidence admitted into court.  all we know is what is reported by someone in the newspaper.  Same thing with the infamous Mcdonalds case.  without getting to into it, the real evidence was that mcdonalds was *superheating* their coffee so that it would still be nice and hot 20 minutes after it was sold.  The coffee was so hot it caused third degree burns in a matter of seconds as opposed to 20 seconds for normally hot coffee.  So instead of being able brush off the spilled coffee before injury, the victim was instantly scalded. Mcdonalds knew this and so the jury punished it by awarding punitive damages of 6 million dollars, equal to one days profit from coffee sales.  This was later thrown out by the court and grandma got the whopping sum of something like 285k which had to pay expenses and her attorneys fee, for the 7 surgeries she needed on her vagina.  I'm sure she feels like she won the lottery for that.



I'm curious, how much hotter than boiling water, you know, like the kind you make coffee with, was this "superheated" coffee?

The injuries were no doubt real, but the defendant's culpability was not.



			
				legalskier said:
			
		

> This thread has really gone far afield, but please, tell me one insurance company that _went under completely due to large jury payouts_. They will cry wolf when they see trouble coming; that's to get the changes they want. But they never really go under. AIG doesn't count--it _almost_ went under due to the unbridled greed of one of its units, which the taxpayers got fleeced for when we bailed them out.
> I'm not sure what case(s) you're alluding to about "stupid awards," but perhaps if you gave something more than cryptic references an explanation can be found.



I don't know what, if any insurance company went under as a result of large jury awards, I was talking about the target of a frivolous lawsuit, the restaurant, manufacturer, state, or individual who gets sued.

The worst award I can think of actually isn't a jury verdict, it is the result of a string of poor jury awards.  In 1979, famed baseball player Thurman Munson died during a botched landing at Akron OH.  Munson died in the crash from smoke inhalation, his 2 passengers escaped with minor burns.  The crash was primarily caused by flying the aircraft at flaps down speeds when the flaps were up.  There were other contributing factors that related to poor judgement and insufficient experience.  Munson was alive after the crash.  His friends couldn't pull him free from his seat, as his harness was still buckled.  There were 2 complicating factors on this:  Munson had not buckled in all 4 points of the 4 point harness, he only had buckled the two lap portions.  After the crash he was slumped forward, making it difficult for his friends to get to the harness release buckle under his torso.  Also, a post crash investigation revealed that the buckle had deformed under the strain enough to jam.  The buckle was designed to take loads with all 4 points attached, it deformed slightly with 2 main parts missing.  This was the basis of Cessna's liability, and they settled out of court for a large amount.

So let's see.  

An inexperienced pilot flies a complicated high performance aircraft well beyond his ability, operates it in a manner that is the sole cause for it to fall out of the sky,  His harness that he failed to properly buckle kept him from being extricated even though he was fortunate enough to survive the crash.  (There may have been a contributing factor from his legs being pinned as his side of the Citation hit a tree stump)  And for all this stupidity and poor judgement from the pilot, Cessna and Cessna's insurance company feared it might be found liable, and settled.  

Not only do we have to pay for these settlements through higher insurance premiums, the way we live and the way we conduct business is dictated by the new requirements added to our insurance policies.  (Many of the rules at ski resorts are dictated by the insurance company, not the resort.  Think about that. ) 

Cases like this one, and many before it contributed to the deepest, largest and longest drop in aircraft manufacturing in general aviation history.  Over 90% reduction.  It went on for years.  Customers could no longer afford the premiums required to pay all the lawsuits.




			
				legalskier said:
			
		

> Speaking of so-called runaway juries, in another thread we discussed the McDonalds Coffee Cup case, where the jury did make a large award. But that was promptly dismantled on appeal, something they don't mind you not knowing about. That way, when you sit on a panel you may keep the award low, not wanting to be branded the next out of control jury. Checks and balances are built into the system.




I'm not aware of any juror that was publicly castigated for a bad decision.  
Are you?



			
				legalskier said:
			
		

> I'll speak from my own experience. Years ago I was sitting in a traffic jam in my old Ford Escort when I was creamed from behind by a Lincoln Continental. Liability was clear, as were my injuries. But nearly three years later, after much rehab and pain management, I ended up with all of $5k. Maybe I should have taken it to trial; next time I will.




Sounds like a terrible experience, and I'm sorry it happened.  I'm surprised you didn't seek legal advice.  This is one area where I expect you and I agree; insurance companies frequently do not offer fair settlements (In their own best interest).  To obtain a fair settlement in a large case, you need a lawyer.  The insurance company will offer you some minimal amount, and you will need to fight to get that increased.  In matters like this, the insurance company is your adversary, especially when you are not the insured, the person at fault is the insured, and the insurance company's desire is to minimize the loss, not to make you whole.  That's just the way it works.


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## legalskier (Sep 30, 2010)

The plaintiffs want to use an expert witness named Stan Gale.  I found a site for a Stan Gale, probably the same dude based on the services offered:

_The following is a partial list of Areas of Investigation, Litigation Support, Consultation,and Expert Witness Testimony available from Rocky Mountain Ski Consulting, LLC. for standards and accepted practices of ski area operations:
Ski trails safety issues
Ski trail marking
Ski trail obstacles including collisions with both natural and man-made features
Ski terrain analysis
Ski racing
Ski area boundary markings
Skier responsibility code issues and interpretation
Standards of medical care within ski areas including triage, transport, and evacuation
Standards and procedures of ski patrol performance
Ski accident investigation and analysis including collisions between guests and ski area employees
Ski accident scene survey and site analysis including freestyle terrain parks ***_

Here's his link if you're interested: http://www.experts.com/showexpert.aspx?eid=4299


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## gmcunni (Sep 30, 2010)

legalskier said:


> The plaintiffs want to use an expert witness named Stan Gale.  I found a site for a Stan Gale, probably the same dude based on the services offered:



do you have any idea what kind of fees experts like this charge? is it fair to assume the plaintiff has to pay the expert regardless of verdict?


----------



## Madroch (Sep 30, 2010)

Um... the problem with the legal system is the people-- it is our PEERS the JURORS..... end of story.  While the legal system has numerous shortcomings, the primary one is the society of self proclaimed victims it serves.  The majority of the other shortcomings are shortcomings in failing to protect the people from themselves-- from rendering verdicts which raise the cost of insurance and require the use of more lawyers (day to day, not for trial work) which raises the cost of doing business, etc.   

In CT State Court the ability to weed out cases is complicated by the fact that unless you get into the complex lit docket, there is no one "judge" assigned to a case and the judges do not have thier own laywer "clerks".  Thus, a judge is confronted with handling all types of cases, without anyone to do research, and is asked to learn each case anew and rule on complicated issues of law (or simply find that the case needs to go to trial due to issues of fact).  If the Judge was assigned to the case throughout-- and would have to spend three weeks presiding over a trial in every case he/she failed to get rid of pre-trial-- you would see judges being much more aggressive pre-trial.  This would become even more prevalanet if each judge had two lawyers as clerks- as with the federal system.  Instead, you have judges assigned to hear numerous motions each week on cases they know nothing about (until they spend a lot of time reading the pleadings), many complicated, with no one to do the research and no "vested"-- read "docket management" interest in spending significant time addressing the motions.  While many state judges do-- they are the exception, IMHO.

In the federal system-- judges get assigned cases upon filing and dump cases all the time-- they know the cases and have the clerks to do the research and realize that if they don't rule on it now, they will spend three weeks of thier life presiding over a trial on it later.  The feds have the money--- and it shows in docket/case management.


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## HowieT2 (Sep 30, 2010)

mister moose said:


> It sounds funny, but I was asked by the State DOT to move a stone wall back 15 ft for that exact reason.  They have lost cases where motorists have contacted man made objects in the road ROW and lost the case.  Even the specter of a case is enough to change policy, even if the case is frivolous.  This is part of the problem, it's not just the frivolous lawsuit, it's the threat of the frivolous lawsuit that will change policy.  The stone wall was approximately 150 years old, by the way.
> 
> 
> 
> ...



First of all, the Munson case was not a negligence case and therefore the reasonableness standard did not apply.  It was a products liability case for which a much stricter standard applies.  One may argue that that standard is too strict and the law should be changed, but it is not an example of outrageous jury awards.

Don't quote me the exact numbers but I think McDonalds was heating the water under pressure and it was somewhere in the neighborhood of 40 degrees hotter than normal coffee.  But the point is, don't always believe what you read.  Jurors generally make the right decision.
GVBvirt-you obviously are going to believe what you want to believe, the facts and reality be damned.  You think that jurors only make mistakes in favor of plaintiffs?   It is only defendants who have to appeal?
The reality is most cases are resolved amicably without need for a trial.  Of cases that do go to trial, Defendants win more than half and in medical malpractice more than 2 of 3.  Where jurors do render verdicts, they are overwhelmingly reasonable.  Most appeals from jury verdicts are over issues like the judges rulings about evidence or the law.  Appeals of outrageous jury verdicts are in reality, rare.  However, if you get your information from the media, they appear to be the norm because thats all they report.

As for the comments about frivolous lawsuits and objects near a roadway, how can you lose a case that's frivolous?  by definition a frivolous case has no merit and can't even arguably be won.  I don't know what the law is in your jurisdiction, but in NY, roadway design/maintenance cases are guided by uniform rules.  The party responsible for the roadway must have knowledge of a dangerous condition prior to the happening of the accident.  If they have knowledge of it and study it and decide not to do anything about it, they are immune from liability.  They can only be held responsible if they knew of a dangerous condition, that violates the safety standards of the uniform rules, and didn't do anything about.  Does that seem unfair to anyone?  

Don't get me wrong, the system is not perfect.  Jurors, judges and lawyers are human.  mistakes happen.  Perhaps some of you would prefer a system like russia or china.  In china where there is no functioning civil tort system, when the milk manufacturer added melamin, sickening thousands and killing hundreds, they simply executed some executives.  In this country, we all benefit from safer products and conduct encouraged by the civil tort system at a lower cost than govt. regulations.


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## HowieT2 (Sep 30, 2010)

gmcunni said:


> do you have any idea what kind of fees experts like this charge? is it fair to assume the plaintiff has to pay the expert regardless of verdict?



The expert probably charges in the neighborhood of 3-5k for his investigation and report.  His testimony is likely 10-25k/day.  These costs are borne by the plaintiff regardless of outcome.
Issues of this nature (outside the kin of an ordinary jurors knowledge), must be addressed by expert testimony.


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## legalskier (Sep 30, 2010)

gmcunni said:


> do you have any idea what kind of fees experts like this charge? is it fair to assume the plaintiff has to pay the expert regardless of verdict?



Each expert charges his own fee, plus expenses (e.g. travel, hotel, food). The parties typically pay for their own expert (Sundown appears to have its own witnesses too), which they pay regardless of verdict/settlement.


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## speden (Sep 30, 2010)

It seems unlikely the plaintiff would be paying the expert, at least not up front.  I thought the ambulance chasing type of lawyers fronted all the costs, and had the plaintiff agree to pay them a percentage of any settlement or award amount.  So the plaintiff probably has nothing to lose by bringing the lawsuit, and the lawyer representing them probably sees a good chance to get some kind of settlement or jury award if things go that far.


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## HowieT2 (Sep 30, 2010)

speden said:


> It seems unlikely the plaintiff would be paying the expert, at least not up front.  I thought the ambulance chasing type of lawyers fronted all the costs, and had the plaintiff agree to pay them a percentage of any settlement or award amount.  So the plaintiff probably has nothing to lose by bringing the lawsuit, and the lawyer representing them probably sees a good chance to get some kind of settlement or jury award if things go that far.



That is somewhat correct.  Plaintiffs generally can't afford to pay such costs.  Lawyers are permitted to pay litigation costs which include expert witness fees.  However, since they are the ultimate responsibility of the client, the disbursements must be considered a loan to the client according to the IRS.  These costs are deducted from any recovery before calculated the attorneys fee, so the lawyer does end up paying through a reduced fee.
 In the last 10 years there has been an explosion of finance companies which will advance these litigation costs at outrageous interest rates because they are not governed by the laws against usury.  This was what the lawyers representing the WTC workers did, in the case that settled recently.  They "borrowed" some 35 million for litigation expenses.


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## bvibert (Sep 30, 2010)

HowieT2 said:


> GVBvirt-you obviously are going to believe what you want to believe, the facts and reality be damned.  You think that jurors only make mistakes in favor of plaintiffs?   It is only defendants who have to appeal?
> The reality is most cases are resolved amicably without need for a trial.  Of cases that do go to trial, Defendants win more than half and in medical malpractice more than 2 of 3.  Where jurors do render verdicts, they are overwhelmingly reasonable.  Most appeals from jury verdicts are over issues like the judges rulings about evidence or the law.  Appeals of outrageous jury verdicts are in reality, rare.  However, if you get your information from the media, they appear to be the norm because thats all they report.



I assume this particular bit was aimed at me...  I believe what makes sense.  What you all keep rambling on about is nonsense, spinning things as you see fit and adding lengthy diatribes to cloud the issue.  Did I ever say that mistakes were only made on the side of plaintiffs?  No, I didn't think so.  Stop trying to put words in my mouth.

The simple fact that cases like this one and the Blonski case can even make it to trial means the system is screwed up in my book.  You can think otherwise, that's fine.  I don't expect anyone who's tied into the legal system to be capable of seeing how screwed up it is.



> As for the comments about frivolous lawsuits and objects near a roadway, how can you lose a case that's frivolous? by definition a frivolous case has no merit and can't even arguably be won.



Exactly my point, the fact that these frivolous cases are going to trail and in some cases succeeding is evidence that the system doesn't work.  Thanks for further proving my point.



> I don't know what the law is in your jurisdiction, but in NY, roadway design/maintenance cases are guided by uniform rules. The party responsible for the roadway must have knowledge of a dangerous condition prior to the happening of the accident. If they have knowledge of it and study it and decide not to do anything about it, they are immune from liability. They can only be held responsible if they knew of a dangerous condition, that violates the safety standards of the uniform rules, and didn't do anything about. Does that seem unfair to anyone?



You forgot to add the bit where some genius finds a loop hole in the law that probably doesn't even really pertain to the case at hand, but bends it to fit.  There's no such thing as uniform rules in the legal system.


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## bobbutts (Sep 30, 2010)

speden said:


> Well the taxpayers end up paying one way or another anyway.  Pick your poison, high insurance rates, coverage limits, co-pays, bankrupt ski areas, sky high lawyer fees, crazy jury awards, bans on out of bounds skiing, etc.
> 
> I already pay a lot in medicare taxes, but get no direct benefits unless I'm lucky enough to live to old age.  Would make more sense to give everyone benefits and eliminate all the crap that comes with for profit insurance.*  Why not just acknowledge that freak accidents happen and have a medical system in place that can deal with it without all the overhead of greedy insurance companies, expensive trials, etc.
> 
> Legitimate at fault parties can still be sued, you'd just decrease the need to sue not at fault "deep pocket" defendants if our medical coverage in the U.S. wasn't so spotty.*


this..


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## HowieT2 (Sep 30, 2010)

bvibert said:


> I assume this particular bit was aimed at me...  I believe what makes sense.  What you all keep rambling on about is nonsense, spinning things as you see fit and adding lengthy diatribes to cloud the issue.  Did I ever say that mistakes were only made on the side of plaintiffs?  No, I didn't think so.  Stop trying to put words in my mouth.
> 
> The simple fact that cases like this one and the Blonski case can even make it to trial means the system is screwed up in my book.  You can think otherwise, that's fine.  I don't expect anyone who's tied into the legal system to be capable of seeing how screwed up it is.
> 
> ...



It would be great if you were open minded enough to admit when you don't know what you are talking about but you persist in spouting opinions based on your beliefs which are not grounded in reality.
As for your final observation about loopholes and uniform rules, the rules I was referring to are industry standards for how to design build and maintain safe roadways.  like where guardrails are needed, how close to a roadway trees/objects should be, sign placement, etc.  You do recognize that these are necessary to ensure safe travel?  engineers dont just make this stuff up as they go along, they follow uniform rules. and the rules aren't made by lawyers or judges or anyone in the legal system.  But I'm sure you will continue to blame lawyers and the legal system for everything you dont like and continue to make judgments about cases you know 'nothing about.


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## mondeo (Sep 30, 2010)

marcski said:


> Interesting that the article states the MDC didn't offer any expert testimony. None regarding liability and none regarding damages? Undoubtedly, they are appealing the jury's verdict.


They were pretty heavily banking on being immune from litigation due to, in my understanding, laws limiting liabilty to municipalites for providing recreaional areas, and laws limiting liability to private entities providing recreational areas. Basically, because they were a corporation made up of municipalities they were open to a lawsuit that neither municipalities or non-municipal corporations, and because they had the gate there to protect access to public water supplies which they sold in the same way a for-profit company would. Essentially, they were arguing that the law loophole they were being sued through didn't actually exist. Yeah, probably should've run plan B and plan C just to be covered, but that was plan A.

And this one's been through the appeals process. No other developments, still $2.9 million. And I'm still asking one of the lawyers to explain the non-economic damages that are 18 times greater than the economic damages.


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## mister moose (Sep 30, 2010)

bvibert said:
			
		

> HowieT2 said:
> 
> 
> 
> ...



Yes.  The point HowieT2 missed earlier is not just what the rules are in the courtroom, but how the current legal environment affects decision making by service providers, manufacturers, governments, etc.  Moving a 150 year old stone wall due to fear of liability lawsuits comes from somewhere, and it ain't made up by someone who doesn't know what he's talking about.


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## HowieT2 (Sep 30, 2010)

mondeo said:


> They were pretty heavily banking on being immune from litigation due to, in my understanding, laws limiting liabilty to municipalites for providing recreaional areas, and laws limiting liability to private entities providing recreational areas. Basically, because they were a corporation made up of municipalities they were open to a lawsuit that neither municipalities or non-municipal corporations, and because they had the gate there to protect access to public water supplies which they sold in the same way a for-profit company would. Essentially, they were arguing that the law loophole they were being sued through didn't actually exist. Yeah, probably should've run plan B and plan C just to be covered, but that was plan A.
> 
> And this one's been through the appeals process. No other developments, still $2.9 million. And I'm still asking one of the lawyers to explain the non-economic damages that are 18 times greater than the economic damages.



Not familiar with the case but if the damage award is for a young person lets say 25, the  life expectancy is another 50 years.  So the jury must decide what is fair and reasonable compensation for loss of enjoyment of life over 50 years taking into account inflation and time value of money.  Even if you assume a low inflation rate of 4-5% and you reduce the 2.9 million to present value, it is not as high as it appears.


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## mondeo (Sep 30, 2010)

speden said:


> Legitimate at fault parties can still be sued, you'd just decrease the need to sue not at fault "deep pocket" defendants if our medical coverage in the U.S. wasn't so spotty.


But if you had no medical expenses, why would you sue in the first place? Such a system removes liability from at-fault parties, which isn't a good thing, when it comes down to it.

The reality is the law suits would continue, because the medical costs aren't often the primary drivers in these cases. It's the lost wages and non-economic awards that dominate the award amounts.


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## HowieT2 (Sep 30, 2010)

mondeo said:


> But if you had no medical expenses, why would you sue in the first place? Such a system removes liability from at-fault parties, which isn't a good thing, when it comes down to it.
> 
> The reality is the law suits would continue, because the medical costs aren't often the primary drivers in these cases. It's the lost wages and non-economic awards that dominate the award amounts.



I think that is correct in the majority of cases where the future medical costs are minimal.  But the real big cases are the ones where there are continuing and future medical costs.  With inflation of medical costs running around 15%/year its easy to see how these costs can dwarf the other elements in damages.  For example, a young person who needs a lifetime of medical care (doctor, therapy, drugs etc.) may have projected future medical costs of 10-25 million dollars, easily.


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## mondeo (Sep 30, 2010)

HowieT2 said:


> Not familiar with the case but if the damage award is for a young person lets say 25, the life expectancy is another 50 years. So the jury must decide what is fair and reasonable compensation for loss of enjoyment of life over 50 years taking into account inflation and time value of money. Even if you assume a low inflation rate of 4-5% and you reduce the 2.9 million to present value, it is not as high as it appears.


Net present value of $2.9 million awarded today is $2.9 million, investments should match inflation anyways.

The woman's basically fully functional now. Maybe some pain, slightly reduced capability, but she still road rides and plays soccer on a regular basis.

U.S. GDP per capita was $48K in 2008. Productive lifespan generously being around 45 years, the monetary value of a life is $2.16 million, net present value. This is a woman who will have to live with slight disabilites, beyond the couple years she was out of work (which was part of the $150K in economic awards, which for the sake of this discussion I'm not arguing.) Her entire life isn't worth what she was awarded in non-economic damages, and yet she gets that amount despite only minor disabilities, if any.


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## bvibert (Sep 30, 2010)

HowieT2 said:


> It would be great if you were open minded enough to admit when you don't know what you are talking about but you persist in spouting opinions based on your beliefs which are not grounded in reality.
> As for your final observation about loopholes and uniform rules, the rules I was referring to are industry standards for how to design build and maintain safe roadways.  like where guardrails are needed, how close to a roadway trees/objects should be, sign placement, etc.  You do recognize that these are necessary to ensure safe travel?  engineers dont just make this stuff up as they go along, they follow uniform rules. and the rules aren't made by lawyers or judges or anyone in the legal system.  But I'm sure you will continue to blame lawyers and the legal system for everything you dont like and continue to make judgments about cases you know 'nothing about.



Sorry if I hurt your feelings with my opinions of the legal system.  Last time I checked I was free to express my opinions.  I am plenty open minded and I form my opinions based on the information presented to me, and of course common sense.  Despite that lawyers are supposed to be good at arguing their points none of your have presented anything to change my opinions on the legal system in this country.  The legal system lacks common sense, IMHO (in case you haven't figured that one out it means In My Humble Opinion, you'll also notice that I use it extensively in this thread).  

Perhaps it's the lawyers in this country who are too damn smug to admit that their precious system if whacked??  God forbid if some mere mortal expresses dissatisfaction with the legal system!!   It's like the lawyer lynch squad comes out to defend their little playhouse. :lol:

I can assure you that any rules or standards in place regarding road construction and safety are heavily influenced by lawyers, but I'm still not sure what your point was.  I don't think anyone is arguing that rules or standards are a bad thing, as long as they make sense.  Standards are fine, however there's always some chump who just has to try to challenge them with some screwed up interpretation, just to make a buck.

I'm sure you'll carry on trying to defend your club by putting words in my mouth and twisting the facts.  Good luck with that, it doesn't work as well outside of the rules of the courtroom.  Thanks for playing though.

BTW - I couldn't be happier that my beliefs are not grounded in what you consider reality! :lol:


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## speden (Sep 30, 2010)

mondeo said:


> But if you had no medical expenses, why would you sue in the first place? Such a system removes liability from at-fault parties, which isn't a good thing, when it comes down to it.
> 
> The reality is the law suits would continue, because the medical costs aren't often the primary drivers in these cases. It's the lost wages and non-economic awards that dominate the award amounts.



Law suits would certainly continue even with universal health care.  This is America after all.

But if you take medical costs out of lawsuits, it would blunt a lot of claims and reduce the risk of big payouts for everyone.  That may be one of the reasons Europe can be a lot more liberal about things like skiing out of bounds.  If someone breaks their neck in the backcountry, the ski resort knows they won't be paying the medical bills, and the skier knows they are not going to become a financial burden on their family.


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## mondeo (Sep 30, 2010)

HowieT2 said:


> I think that is correct in the majority of cases where the future medical costs are minimal. But the real big cases are the ones where there are continuing and future medical costs. With inflation of medical costs running around 15%/year its easy to see how these costs can dwarf the other elements in damages. For example, a young person who needs a lifetime of medical care (doctor, therapy, drugs etc.) may have projected future medical costs of 10-25 million dollars, easily.


Again, I'm not for limiting lawsuits for costs, past, present or future. That's reasonable to allow. Inflation of _insurance_ costs is running 15%/year, but that's not medical costs - that has more to do with the aging population (increasing the amount of medical care, not cost/amount) and increase in uninsured care, which ultimately gets lumped into hospital bills for insured individuals. I don't know _how_ you structure future medical cost reimbursement, but by all means do something for it. But there needs to be an actual cost associated with it.

Keeping liability for the at-fault party, despite the general hatred for lawyers and lawsuits, needs to be kept alive. It's what drives consideration of people's safety, and the only real way to assess how much cost should be put into products to account for safety risks. What needs to change is a system where financial incentive (real or perceived) for getting injured exists, and what is considered to be a reasonable level of personal responsibility. In the Sundown, MDC, and McD cases, that's where the failure (in my mind, at least) really occurs, in line with life outside the courtroom. The abdication of responsibility for peoples own actions. (Oh, the tantalizing tangents I could go on with that one. But I won't. This thread's suffered enough of a hijack.)


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## bvibert (Sep 30, 2010)

mondeo said:


> despite the general hatred for lawyers and lawsuits,



I just wanted to add that I don't have a general hatred for lawyers (maybe most lawsuits, but that's another matter).  I have friends and family who are lawyers.  Their line of thinking doesn't make sense most of the time, but that doesn't make them bad people.  There are bad lawyers who I do hate, at least what they do, I don't actually know them.

I don't pretend to know everything about the legal system.  My opinion is that it's screwed up.  I also don't pretend to know how to fix it, nor do I think it will ever change in any sort of major way.  The people who could change it don't think there's anything wrong with it, so I don't see anything changing.


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## legalskier (Sep 30, 2010)

mister moose said:


> *Originally Posted by legalskier
> As for the comments about frivolous lawsuits and objects near a roadway, how can you lose a case that's frivolous? by definition a frivolous case has no merit and can't even arguably be won*
> Yes.  The point Legalskier missed earlier is not just what the rules are in the courtroom, but how the current legal environment affects decision making by service providers, manufacturers, governments, etc.  Moving a 150 year old stone wall due to fear of liability lawsuits comes from somewhere, and it ain't made up by someone who doesn't know what he's talking about.




How did my name get attached to words that I didn't write?  I never made that statement, but someone put my name on them. Wtf is going on here???


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## mister moose (Sep 30, 2010)

legalskier said:


> How did my name get attached to words that I didn't write?  I never made that statement, but someone put my name on them. Wtf is going on here???



That's my mistake.  I was quoting bvibert post 125, and mistakenly inserted your name for his unattributed quote, mixing you up with HowieT2.  Appologies.  Post has been edited to be correct now.


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## JimG. (Oct 1, 2010)

bvibert said:


> I don't pretend to know everything about the legal system.  My opinion is that it's screwed up.  I also don't pretend to know how to fix it, nor do I think it will ever change in any sort of major way.  The people who could change it don't think there's anything wrong with it, so I don't see anything changing.



Hmmmm....

I used to tihnk this way, but I have come to realize that the legal system and lawyers are really a reflection of society at large. Society and the way we go about things as a society are to blame, not the lawyers. They are just filling certain needs.

I'll use no fault auto insurance states as an example. If someone enters your home and destroys your property, they can be arrested and thrown into jail. Then they will be ordered to pay restitution as a part of their sentence. Not so with auto no fault insurance. Any moron can slam into your car and destroy it, but the consequences are nil. They won't be arrested unless they are drunk and even then they probably won't be arrested or thrown into jail. Your insurance company decides how much you will receive for your destroyed property, it is almost guaranteed this amount will be only a small fraction of what it will cost you to replace your car, and if you don't like it, tough.

If you aren't injured, you are really up a creek; if you are injured, you have to sue the other person to get restitution and that will take years.

Are the lawyers to blame? No. The system that says nobody is to blame is at fault and the system is more entrenched in society as time passes. Today, nobody takes responsibility for anything. That's the problem, not lawyers.


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## HowieT2 (Oct 1, 2010)

mondeo said:


> Net present value of $2.9 million awarded today is $2.9 million, investments should match inflation anyways.
> 
> The woman's basically fully functional now. Maybe some pain, slightly reduced capability, but she still road rides and plays soccer on a regular basis.
> 
> U.S. GDP per capita was $48K in 2008. Productive lifespan generously being around 45 years, the monetary value of a life is $2.16 million, net present value. This is a woman who will have to live with slight disabilites, beyond the couple years she was out of work (which was part of the $150K in economic awards, which for the sake of this discussion I'm not arguing.) Her entire life isn't worth what she was awarded in non-economic damages, and yet she gets that amount despite only minor disabilities, if any.



In NY jury awards above 250k for future pain and suffering are reduced to present value by the court outside of the presence and knowledge of the jury.  So a 2.9 million verdict does not result in the plaintiff actually receiving 2.9 million.
furthermore the costs and attorneys fee are deducted such that, the plaintiff would take home about 60-65% of whatever the final number is assuming there is sufficient insurance coverage to pay the award.

As I stated previously, I am not familiar with the case, but the jury was the one who heard the evidence from both sides, remember this is an adversarial proceeding, and was in a much better position to make a judgment as to what was fair and reasonable compensation, than monday morning quarterbacks based on 3rd hand accounts of one side of the story.  That's not to say, that if you were on that jury you wouldnt have awarded a different number.  just that in my experience, there must have been some pretty compelling evidence to warrant a jury award of that magnitude and it being upheld by both the trial judge and an appellate court. I have studied every appellate decision concerning the value of injuries in NY for 20 years, and believe me, it is not easy to uphold an award.
If you are really interested in the subject check out this blog.  http://www.newyorkinjurycasesblog.com/


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## HowieT2 (Oct 1, 2010)

bvibert said:


> Sorry if I hurt your feelings with my opinions of the legal system.  Last time I checked I was free to express my opinions.  I am plenty open minded and I form my opinions based on the information presented to me, and of course common sense.  Despite that lawyers are supposed to be good at arguing their points none of your have presented anything to change my opinions on the legal system in this country.  The legal system lacks common sense, IMHO (in case you haven't figured that one out it means In My Humble Opinion, you'll also notice that I use it extensively in this thread).
> 
> Perhaps it's the lawyers in this country who are too damn smug to admit that their precious system if whacked??  God forbid if some mere mortal expresses dissatisfaction with the legal system!!   It's like the lawyer lynch squad comes out to defend their little playhouse. :lol:
> 
> ...



I think your last quote says at all.  I was just trying to inform you and other readers of what the facts are because your opinion and that of many others in this country is understandable based on the information presented to you.  You could have no way of knowing the truth, because you are and have been for 30 years, the subject of a concerted propaganda campaign by the insurance industry, big business and the republican party, to destroy the rights of individuals so they can increase they're bottom line.  I wish you and your family the best of luck.  I hope you all lead a happy, healthy life devoid of any significant misfortune.  But I know, that should anything happen, you will be the first one on the phone to call a lawyer like me to protect your rights and once you experience the system firsthand, you will realize that what I'm telling you is the truth.


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## severine (Oct 1, 2010)

HowieT2 said:


> I think your last quote says at all.  I was just trying to inform you and other readers of what the facts are because your opinion and that of many others in this country is understandable based on the information presented to you.  You could have no way of knowing the truth, because you are and have been for 30 years, the subject of a concerted propaganda campaign by the insurance industry, big business and the republican party, to destroy the rights of individuals so they can increase they're bottom line.  I wish you and your family the best of luck.  I hope you all lead a happy, healthy life devoid of any significant misfortune.  But I know, that should anything happen, you will be the first one on the phone to call a lawyer like me to protect your rights and once you experience the system firsthand, you will realize that what I'm telling you is the truth.


While I don't share all of b's views, he has every right to express them. Please don't make assumptions about my family. You don't know us. You don't know what we would do or how we would react. And while I realize you're trying to make a point, I find it distasteful that you would try to use my family as an example for your agenda.


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## mondeo (Oct 1, 2010)

HowieT2 said:


> ... but the jury was the one who heard the evidence from both sides, remember this is an adversarial proceeding, and was in a much better position to make a judgment as to what was fair and reasonable compensation, than monday morning quarterbacks based on 3rd hand accounts of one side of the story.


Another aspect of this is that most of the people on this board who bring this case up have ridden at WH Rez, and know exactly what gate she ran into, and exactly how stupid you'd have to be to run into it. While the jury may have heard both sides of the story, what they heard from the plaintiff's side was that the gate was poorly marked. We who have ridden there know that it is very clearly marked, something that the jury most likely didn't have our knowledge of (and I'm guessing was taken care of in jury selection.)


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## mondeo (Oct 1, 2010)

HowieT2 said:


> You could have no way of knowing the truth, because you are and have been for 30 years, the subject of a concerted propaganda campaign by the insurance industry, big business and the republican party, to destroy the rights of individuals so they can increase they're bottom line.


While we're at it, the only reason they haven't been successful is because the Democrats, American Bar Association, unions, and other special interest groups have been better at suppressing the understanding of economics in this country.

Seriously, dude, WTF. Let's keep the conspiracy theories out of it.


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## HowieT2 (Oct 1, 2010)

severine said:


> While I don't share all of b's views, he has every right to express them. Please don't make assumptions about my family. You don't know us. You don't know what we would do or how we would react. And while I realize you're trying to make a point, I find it distasteful that you would try to use my family as an example for your agenda.



Excuse me?  I don't see how I made any assumptions about your or any other family.  If I did, I profoundly apologize.  But I'm stumped as to how you interpreted what I said in a negative way.  All I said was that if, god forbid, something were to happen such that B would gain personal knowledge of the system he is deriding, he would feel very differently about it.


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## severine (Oct 1, 2010)

HowieT2 said:


> Excuse me?  I don't see how I made any assumptions about your or any other family.  If I did, I profoundly apologize.  But I'm stumped as to how you interpreted what I said in a negative way.  All I said was that if, god forbid, something were to happen such that B would gain personal knowledge of the system he is deriding, he would feel very differently about it.


I am married to B. He is my husband. His family is my family. You assumed that if something happened to him or his family, he would run right to a lawyer.



> I wish you and your family the best of luck. I hope you all lead a happy, healthy life devoid of any significant misfortune. But I know, that should anything happen, you will be the first one on the phone to call a lawyer like me to protect your rights and once you experience the system firsthand, you will realize that what I'm telling you is the truth.



Hence, you made assumptions about me and my family. Please don't pretend to know what others will do in a hypothetical circumstance; that's not predictable.


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## Black Phantom (Oct 1, 2010)

severine said:


> I am married to B. He is my husband. His family is my family. You assumed that if something happened to him or his family, he would run right to a lawyer.
> 
> 
> 
> Hence, you made assumptions about me and my family. Please don't pretend to know what others will do in a hypothetical circumstance; that's not predictable.



Sue him!


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## bvibert (Oct 1, 2010)

HowieT2 said:


> But I know, that should anything happen, you will be the first one on the phone to call a lawyer like me to protect your rights and once you experience the system firsthand, you will realize that what I'm telling you is the truth.



Please don't pretend to know me or what I'll do.  If some sort of misfortune happens to me that is my fault I most certainly will NOT be on a phone to a lawyer.  And that's what we're talking about here; people using the legal system for personal gain when it's not due.  You won't find anywhere that I say that the legal system has no value at all and doesn't work in some cases.


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## jaywbigred (Oct 1, 2010)

mondeo said:


> Problem is the definition of frivolous lawsuit. Lawyers will be better than I am at this, obviously, but stupid != frivolous. Ski resorts do have some responsibility for providing reasonably safe conditions. If Sundown made a massive booter onto a flat landing, they'd be responsible for the injuries because of an improperly made jump. Some reasonable level of marking is rational - unmarked, unexpected cliffs in the middle of a beginner trail would be another case of a winning lawsuit waiting to happen. Just because a lawsuit seems like a born loser to us does not make it frivolous. Guilt is not for the judge to decide before a trial.
> 
> Frivolous lawsuits aren't the issue. Lawsuits as a means of wealth generation are. I think it's wrong if you're disavowing personal responsibility, but lawsuits to cover costs I don't have much of a problem with. It's the $500 to cover doctors visits and $3 million to cover pain and suffering from a sprained ankle that's the issue.



Mondeo, this is a well reasoned opinion. I agree with a lot of what you said.



mondeo said:


> Funny. Lawyers telling us not to feel bad for insurance companies because they have to pay lawyers.


 This is less well reasoned. :???:



bvibert said:


> How about using common sense??  You're so entrenched in the system that you can't see just how absurd it is.  I understand the basics of the situation as it's 'supposed' to work, my point all along is that the system doesn't 'work'.  Using the system to prove that the system works when it defies common sense does not hold any weight for me.  I'm sorry you guys just can't see that.


 I don't think you understand even the basics, unfortunately. 



Glenn said:


> This thread DELIVERS!
> 
> If someone sues McDonald's for coffee being too hot, we need tort reform.


  But what if the coffee really IS too hot? 



speden said:


> Another big contributor is the jury based award system.  Juries don't know the appropriate amount of money to award in these cases, since they are being asked to be experts on something they have never done before in their lives.  It's not that hard to play on people's sympathies and get a fairly big award, since the juries can rationalize that this is the only way the person with the horrible injury can get the money they need, even if they don't think the party being sued is really that culpable.  Juries should be allowed to get an unbiased recommendation from a professional court employed claims adjuster when making an award.


 I think the simple answer is to do whatever is necessary to create juries of actual peers, i.e. not just retirees, the unemployed, and people whose excuses weren't good enough to get out of it.



gmcunni said:


> my father inlaw was interviewing for jury duty a several years ago.  a woman had gotten hurt in a accident and the husband filed suit for $$ compensation due to his wife not being able to have sex with him.  my father in-law basically laughed at the allegation during his interview session and was quickly eliminated as a juror on the case.


 You marry someone and want to spend the rest of your life committed to them. Some drunk driver runs her over, and she can no longer be sexually active. Can you not envision how that is as debilitating to a committed marriage as someone losing a leg or their hearing or something like that? Obviously, money isn't going to enable her to become sexually active again, but our legal system is based on the concept that if you can't repair someone to the exact state they were before they were injured, the only thing you CAN do is try to compensate them with money. Until we have other solutions (bring on the cyborgs!!!), this is the best we can do.



bvibert said:


> So, the proof that the system isn't broken is that once a verdict is reached it's appealed anyway?  And then often someone with common sense comes up with a realistic ruling?
> 
> Sounds like a huge waste of time and money to me.  If it worked right the first time there wouldn't be need for all the appeals.  Keeps the lawyers busy though, so I guess there's that...


 What kind of human-created system works right the first time, every time? Are you kidding? 



Madroch said:


> Um... the problem with the legal system is the people-- it is our PEERS the JURORS..... end of story.  While the legal system has numerous shortcomings, the primary one is the society of self proclaimed victims it serves.


 Ding ding ding.  Juries are not of our peers!



HowieT2 said:


> The reality is most cases are resolved amicably without need for a trial.  Of cases that do go to trial, Defendants win more than half and in medical malpractice more than 2 of 3.  Where jurors do render verdicts, they are overwhelmingly reasonable.  Most appeals from jury verdicts are over issues like the judges rulings about evidence or the law.  Appeals of outrageous jury verdicts are in reality, rare.  However, if you get your information from the media, they appear to be the norm because thats all they report.


 Exactly; seek out information that doesn't come from a newspaper, and you'll be surprised what actual, tabulated statistics show in regards to settlement rates, settlement amounts, appeals, and so on.



bvibert said:


> Sorry if I hurt your feelings with my opinions of the legal system.  Last time I checked I was free to express my opinions.  I am plenty open minded and I form my opinions based on the information presented to me, and of course common sense.  Despite that lawyers are supposed to be good at arguing their points none of your have presented anything to change my opinions on the legal system in this country.  The legal system lacks common sense, IMHO (in case you haven't figured that one out it means In My Humble Opinion, you'll also notice that I use it extensively in this thread).
> 
> Perhaps it's the lawyers in this country who are too damn smug to admit that their precious system if whacked??  God forbid if some mere mortal expresses dissatisfaction with the legal system!!   It's like the lawyer lynch squad comes out to defend their little playhouse. :lol:
> 
> ...


 To me this post borders on trolling. Certainly it is incendiary. Rather than name call in response, I want to try to address a couple of your comments each in its own turn. Keep in mind that though I am a lawyer, I do not participate in the trial system or really the justice system in any way in my practice. I write Wills and complete tax returns. That's basically it. Therefore, my view of the justice system is simply that of having been a student of it for a few years. It is nothing personal to my existence.

"I form my opinions based on the information presented to me" - I wonder what information that is. I worry that it is overly-influenced by what is reported in the media. I think anyone who takes the time to study the long, centuries old history of our justice system (and the ones it is based upon) would arrive at a different conclusion to the one you have. It might provide some perspective as to just how difficult it is to address the problems that the justice system attempts to solve. It would also provide a better basis from which to point out the many flaws in that system.

"The legal system lacks common sense, IMHO" - This is a valid opinion to have, but you have to first admit that there is no such thing as iron clad, 100% right-all-the-time common sense. So the legal system might based on society's general, communal common sense, but not necessarily what you consider common sense. For example, you find a person on a subway platform, bleeding from some sort of wound. He is acting crazy, swearing at you, stumbling around, but obviously his life is in danger. Common sense to a lot of people is to steer clear of this person and dial 911. Common sense to an equal number of people is to do whatever you can to help the bleeding person. There is an element of common sense to both. Neither position lacks logic. Same goes for the legal system. Maybe you believe the legal system lacks common sense that aligns with your, but that doesn't mean it lacks it altogether. I guarantee you, were you to study it in depth, you would see it adheres to some pretty strict rules of logic.That doesn't mean it succeeds all the time, just that the basis of the system, imo, is fundamentally sound.

"Perhaps it's the lawyers in this country who are too damn smug to admit that their precious system if whacked??" - If you asked 100 lawyers in this country "Do you think the legal justice system is good the way it is? Or does it need extensive reform" you'd get 100 answers that "it needs reform." I have never met a lawyer who doesn't have qualms with the system. I am not sure where you get this belief from. And its not "the lawyers' system", it is everyone's system. The basis is the Constitution and the laws that spring therefrom. Those laws, and even the Constitution itself, can be changed. We all have the same right to vote.



bvibert said:


> I just wanted to add that I don't have a general hatred for lawyers (maybe most lawsuits, but that's another matter).  I have friends and family who are lawyers.  Their line of thinking doesn't make sense most of the time, but that doesn't make them bad people.  There are bad lawyers who I do hate, at least what they do, I don't actually know them.
> 
> I don't pretend to know everything about the legal system.  My opinion is that it's screwed up.  I also don't pretend to know how to fix it, nor do I think it will ever change in any sort of major way.  The people who could change it don't think there's anything wrong with it, so I don't see anything changing.


 YOU can change it! Laws change ALL THE TIME! So do the structures of the court system! Some states have amended their constitution thousands of times! Other states have ELECTED judges at every level! 

BV, you are 100% right that the system needs fixing. But that doesn't mean it is beyond repair. If you ever have the time, audit a course on comparative legal justice systems. We have our Constitution, our law making process, and our court system, and, after studying those around the world, I would take them every day of the week, flaws an all. If you hate them that much, you are lucky enough to live in an era where you can vote with your feet and move. 



JimG. said:


> Hmmmm....
> 
> I used to tihnk this way, but I have come to realize that the legal system and lawyers are really a reflection of society at large. Society and the way we go about things as a society are to blame, not the lawyers. They are just filling certain needs....Are the lawyers to blame? No. The system that says nobody is to blame is at fault and the system is more entrenched in society as time passes. Today, nobody takes responsibility for anything. That's the problem, not lawyers.


 I don't know that I agree that "nobody takes responsibility for anything", but I do agree with the rest of this statement. Very well said.


----------



## bvibert (Oct 1, 2010)

JimG. said:


> Hmmmm....
> 
> I used to tihnk this way, but I have come to realize that the legal system and lawyers are really a reflection of society at large. Society and the way we go about things as a society are to blame, not the lawyers. They are just filling certain needs.
> 
> ...



Not blaming the lawyers per se, though there are those who take advantage of the broken system and screwed up society to make a dishonest buck.  I agree that society is largely to blame, but to me it's kinda of a chicken or the egg deal... if the legal system wasn't such that it is then people wouldn't be able to pull off what they have been pulling off.  On the other side; if society wasn't so screwed up then the legal system wouldn't have gotten to the state that it's in now.  Neither one will likely change any time too soon, so I'll just continue rant like I have been.


----------



## marcski (Oct 1, 2010)

Was it last week or earlier this week when someone said that this place is boring this autumn?? 

:flame::flame::flame:


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## bvibert (Oct 1, 2010)

jaywbigred said:


> What kind of human-created system works right the first time, every time? Are you kidding?



Granted nothing is perfect, but it can do a far better job than it's doing now.



jaywbigred said:


> "I form my opinions based on the information presented to me" - I wonder what information that is. I worry that it is overly-influenced by what is reported in the media. I think anyone who takes the time to study the long, centuries old history of our justice system (and the ones it is based upon) would arrive at a different conclusion to the one you have. It might provide some perspective as to just how difficult it is to address the problems that the justice system attempts to solve. It would also provide a better basis from which to point out the many flaws in that system.



I have little to no interest in reading centuries worth of history about how the legal system doesn't work.  I can see with my own eyes that many times it doesn't make any sense.  You are correct that my information unfortunately comes from the equally screwed up media.  Like most other non-lawyers that's the only place to get my information from.



jaywbigred said:


> "The legal system lacks common sense, IMHO" - This is a valid opinion to have, but you have to first admit that there is no such thing as iron clad, 100% right-all-the-time common sense. So the legal system might based on society's general, communal common sense, but not necessarily what you consider common sense. For example, you find a person on a subway platform, bleeding from some sort of wound. He is acting crazy, swearing at you, stumbling around, but obviously his life is in danger. Common sense to a lot of people is to steer clear of this person and dial 911. Common sense to an equal number of people is to do whatever you can to help the bleeding person. There is an element of common sense to both. Neither position lacks logic. Same goes for the legal system. Maybe you believe the legal system lacks common sense that aligns with your, but that doesn't mean it lacks it altogether. I guarantee you, were you to study it in depth, you would see it adheres to some pretty strict rules of logic.That doesn't mean it succeeds all the time, just that the basis of the system, imo, is fundamentally sound.



I'll give you that some people have different ideas of common sense, or lack it all together.  They can't all be as perfect as me.






jaywbigred said:


> "Perhaps it's the lawyers in this country who are too damn smug to admit that their precious system if whacked??" - If you asked 100 lawyers in this country "Do you think the legal justice system is good the way it is? Or does it need extensive reform" you'd get 100 answers that "it needs reform." I have never met a lawyer who doesn't have qualms with the system. I am not sure where you get this belief from. And its not "the lawyers' system", it is everyone's system. The basis is the Constitution and the laws that spring therefrom. Those laws, and even the Constitution itself, can be changed. We all have the same right to vote.



I'm basing my belief on lawyers vehemently defending how great the system works every time I express an opinion that it does not work in many cases.  This thread in particular is a great example of that.  I don't see one in this thread admitting that the system has flaws and needs work, except for Madroch and now you.

My point was to try to get those within the system to look outside of it, and see how it looks from the outside, which is the way most of the country sees it.



jaywbigred said:


> YOU can change it! Laws change ALL THE TIME! So do the structures of the court system! Some states have amended their constitution thousands of times! Other states have ELECTED judges at every level!



I'm not going to get into politics here, but we both know that getting ANYTHING to change is near impossible, and very costly both in time and money.



jaywbigred said:


> BV, you are 100% right that the system needs fixing. But that doesn't mean it is beyond repair. If you ever have the time, audit a course on comparative legal justice systems. We have our Constitution, our law making process, and our court system, and, after studying those around the world, I would take them every day of the week, flaws an all. If you hate them that much, you are lucky enough to live in an era where you can vote with your feet and move.



Once again, I have much more interesting (to me) things to do with my limited time then to spend my time in a law class.  I'll continue to base my opinions on what makes sense to me.  And when I see something that doesn't make sense to me I'll continue to speak out about it.  This started with me calling out this case as a waste of time and money and an example of a flaw in the legal system.  So far no one has proved to me otherwise, most lawyers in this thread agree that the plaintiff has no case, which only further proves my point.


----------



## mondeo (Oct 1, 2010)

jaywbigred said:


> This is less well reasoned. :???:


Snarky, yes, and possibly poorly worded. In essence, it seems to me like a few of the lawyers involved with this thread are blasting insurance companies because, from their point of view, insurance companies are faceless entities that are pushing tort reform to squash personal rights in pursuit of even more massive profits. People typically have a disdain for lawyers because they're percieved as faceless entities bent on distorting the laws governing liability in pursuit of even more wealth. Neither is a realistic point of view, insurance companies work the same way as any other while providing a valuable good. Just like lawyers work - if there wasn't demand for their services, there wouldn't be money to be made their.

Reality check here. The Travellers Companies (essentially pure insurance) made $3.6 billion (operating income) last year on revenue of $25 billion. Other Dow components, operating income where available: Intel, $5.7 billion on $35.1 billion. Boeing $3.9 on $60.9. Home Depot $4.4 on $71.3 Merck $4.8 on $27.4 Walt Disney $5.8 on $36.1. UTC $4.7 on $59.8. Yeah, insurance gives margins on the higher end of the range, but it's not out of whack with the rest of the economy. The whole "just want to increase profits by reducing costs, no benefit to anyone but themselves" theory is completely out of whack with reality anywhere there's competition. As long as there's competition, a reduction in cost will have some impact to what the consumer pays through increasing supply of the good or service.

And if you have a mutual fund of any type, YOU are the insurance company. All that work to increase revenues is going towards your retirement. So thank them for that.


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## bvibert (Oct 1, 2010)

jaywbigred said:


> To me this post borders on trolling. Certainly it is incendiary.



Perhaps I went a little overboard, I apologize if I personally offended anyone.


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## mondeo (Oct 1, 2010)

bvibert said:


> I'm not going to get into politics here, but we both know that getting ANYTHING to change is near impossible, and very costly both in time and money.


Incidentally, be thankful for that. That part of the system still works as intended, 223 years later.


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## legalskier (Oct 1, 2010)

mondeo said:


> Seriously, dude, WTF. Let's keep the conspiracy theories out of it.



It's more P.R. than conspiracy. Any business tries to reduce costs and increase revenues. Insurance companies are no different- if they can get people to keep awards low, they net more, no? There’s nothing illegal about it, so it isn’t technically a ‘conspircy.’ It’s just what they do, and people who are aware of it won’t get manipulated. 
E.g.- _State Farm's internal manuals make clear that it uses employees and agents to influence politicians and media representatives. *It places snippets of information, some truthful facts and quotes with the media, trying to influence what it wants to be read and heard.* It uses lobbyists and politicians favorable towards it to influence other leaders. State Farm's business plan involves government action. It seeks regulations and laws favorable to it and which often support common interests with other insurers (Allstate and Nationwide) in the property and casualty business._

http://www.propertyinsurancecoverag...e/state-farms-power-play-and-propaganda-ploy/


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## SkiDork (Oct 1, 2010)

reminds me of the movie "The Rainmaker"


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## legalskier (Oct 1, 2010)

jaywbigred said:


> To me this post borders on trolling.



Some of us have put effort into helping other members understand the predicament SS finds itself in, yet it feels like we are coming under attack. I would simply ask that the messenger not be killed.


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## 2knees (Oct 1, 2010)

SkiDork said:


> reminds me of the movie "The Rainmaker"




I think you need to change your sig Dork.  I'm assuming that was regarding Revis.


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## HowieT2 (Oct 1, 2010)

severine said:


> I am married to B. He is my husband. His family is my family. You assumed that if something happened to him or his family, he would run right to a lawyer.
> 
> 
> 
> Hence, you made assumptions about me and my family. Please don't pretend to know what others will do in a hypothetical circumstance; that's not predictable.


 
I apologize for asserting that your husband would consult a lawyer to determine what his rights are if confronted with such a situation.  I didn't intend to offend you or him.  I merely was stating my experience over the past 20 years of helping victims many of whom never thought they'd be in a position to need a lawyer to protect them.


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## SkiDork (Oct 1, 2010)

2knees said:


> I think you need to change your sig Dork.  I'm assuming that was regarding Revis.



yeah, I have to get around to that.


----------



## mondeo (Oct 1, 2010)

bvibert said:


> So far no one has proved to me otherwise, most lawyers in this thread agree that the plaintiff has no case, which only further proves my point.


I think most of the lawyers would say it would seem as if he has no case. Without knowing the details, it's hard to say for sure. I know they build good jumps now, but I wasn't skiing there when this accident occurred. I know they had difficulty with lighting a bit last year. With the right combination of flaky lighting, poor jump construction, lack of sinage, etc., you might be able to build a case. We don't know all the details.

Now, being an intermediate approaching a dimly lit jump you're not familiar with, you might reasonably just decide not to hit it, but, hey. This is the reason they don't allow straight inverts at Sundown - afraid some intermediate skier might think it looks easy and try to copy it, not because someone that knows what they're doing might get hurt.


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## HowieT2 (Oct 1, 2010)

mondeo said:


> Another aspect of this is that most of the people on this board who bring this case up have ridden at WH Rez, and know exactly what gate she ran into, and exactly how stupid you'd have to be to run into it. While the jury may have heard both sides of the story, what they heard from the plaintiff's side was that the gate was poorly marked. We who have ridden there know that it is very clearly marked, something that the jury most likely didn't have our knowledge of (and I'm guessing was taken care of in jury selection.)



If the jury was unaware how clearly marked the gate was, the defense attorneys didnt do a very good job, did they.


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## bvibert (Oct 1, 2010)

mondeo said:


> I think most of the lawyers would say it would seem as if he has no case. Without knowing the details, it's hard to say for sure. I know they build good jumps now, but I wasn't skiing there when this accident occurred. I know they had difficulty with lighting a bit last year. With the right combination of flaky lighting, poor jump construction, lack of sinage, etc., you might be able to build a case. We don't know all the details.



True, we don't know all the details.  I just have trouble envisioning how Sundown could possibly be at fault based on what we do already know (admitted lower level skier, purposely hit the jump, cut over three trails to get there, etc..).


----------



## HowieT2 (Oct 1, 2010)

bvibert said:


> Please don't pretend to know me or what I'll do.  If some sort of misfortune happens to me that is my fault I most certainly will NOT be on a phone to a lawyer.  And that's what we're talking about here; people using the legal system for personal gain when it's not due.  You won't find anywhere that I say that the legal system has no value at all and doesn't work in some cases.



Maybe that is our basic area of disagreement.  I haven't been talking about a situation where the victim is at fault.  I am talking about a situation where we don't know who is at fault, because we don't know the facts or the law that is applicable.  That is why we have a civil justice system to make such a determination.  I am merely defending the existence of the system with all its imperfections.


----------



## mondeo (Oct 1, 2010)

legalskier said:


> It's more P.R. than conspiracy. Any business tries to reduce costs and increase revenues. Insurance companies are no different- if they can get people to keep awards low, they net more, no? There’s nothing illegal about it, so it isn’t technically a ‘conspircy.’ It’s just what they do, and people who are aware of it won’t get manipulated.
> E.g.- _State Farm's internal manuals make clear that it uses employees and agents to influence politicians and media representatives. *It places snippets of information, some truthful facts and quotes with the media, trying to influence what it wants to be read and heard.* It uses lobbyists and politicians favorable towards it to influence other leaders. State Farm's business plan involves government action. It seeks regulations and laws favorable to it and which often support common interests with other insurers (Allstate and Nationwide) in the property and casualty business._
> 
> http://www.propertyinsurancecoverag...e/state-farms-power-play-and-propaganda-ploy/


Yeah, they do that. But at the same time, the American Bar Association is doing their own PR job, partially represented by that link you gave. Both perfectly reasonable things to do, neither side to be trusted entirely. Both sides have some basis in truth, and often don't even argue the same points. Both sides position the other as the bad guy. But if the PR campaign was as one sided as Howie was saying, then the tort reform would already be a done deal. I'm fully aware of the way the game works, my company's currently involved in a massive single contract with the government where the exact same type of stuff is going on.

I'm not trying to attack the lawyers, I'm trying to defend the insurance companies from the lawyers' attacks. I've even thrown in a defense of the lawyers here and there - to me, in this issue they're on opposing sides, both having their points. What's right, as often is in the case, is somewhere in the middle.


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## mondeo (Oct 1, 2010)

HowieT2 said:


> If the jury was unaware how clearly marked the gate was, the defense attorneys didnt do a very good job, did they.


Yeah, on that side they might have OJ'd the case, as I mentioned before. But they did clearly get sued through a loophole that will hopefully be closed next year.


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## bvibert (Oct 1, 2010)

HowieT2 said:


> Maybe that is our basic area of disagreement.  I haven't been talking about a situation where the victim is at fault.  I am talking about a situation where we don't know who is at fault, because we don't know the facts or the law that is applicable.  That is why we have a civil justice system to make such a determination.  I am merely defending the existence of the system with all its imperfections.



I'm talking about situations where it's clear to sensible people that the plaintiff is at fault.  I'm not necessarily interested about what law may or may not determine if the plaintiff is indeed not at fault because I don't hold as much faith in the laws as you do.

That's the basis of my argument that most of you just aren't seeing.  I don't have faith in the justice system to do the right thing in many cases.  Arguing that a case is fair just because the legal system says it is doesn't work for me when it's the legal system itself that I'm calling into question.  Apparently not an easy proposition to grasp for those who's livelihoods depend on the legal system... 

There's fundamentally different ideals in play here, one is not necessarily more right or wrong than the other.  I'm willing to agree to disagree.


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## gmcunni (Oct 1, 2010)

bvibert said:


> (admitted lower level skier, purposely hit the jump, *cut over three trails to get there*, etc..).



i believe they had one of those soft orange fences up all last season to prevent (deter at least) people cutting over to the big jump from the other trails, probably on advice from council ;-)


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## HowieT2 (Oct 1, 2010)

mondeo said:


> Yeah, they do that. But at the same time, the American Bar Association is doing their own PR job, partially represented by that link you gave. Both perfectly reasonable things to do, neither side to be trusted entirely. Both sides have some basis in truth, and often don't even argue the same points. Both sides position the other as the bad guy. But if the PR campaign was as one sided as Howie was saying, then the tort reform would already be a done deal. I'm fully aware of the way the game works, my company's currently involved in a massive single contract with the government where the exact same type of stuff is going on.
> 
> I'm not trying to attack the lawyers, I'm trying to defend the insurance companies from the lawyers' attacks. I've even thrown in a defense of the lawyers here and there - to me, in this issue they're on opposing sides, both having their points. What's right, as often is in the case, is somewhere in the middle.



I purposefully didnt single out the insurance industry, because it is not them alone.  It is big business in general through the US chamber of commerce and various "grass roots" entities they fund, and the republican party.  All are pursuing their legitimate interests.  The republican party because of it's ties to big business, because trial lawyers overwhelmingly support democrats, and it plays well to the masses to blame the lawyers.  If you think lawyers have the anything compared to the means of these three, you are mistaken.  and they don't need "tort deform" to win.  As I stated earlier, total claims paid out have been steady for 20 years.  no growth, even for inflation, not to mention health care inflation.  They have already won.


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## gmcunni (Oct 1, 2010)

bvibert said:


> I'm talking about situations where it's clear to sensible people that the plaintiff is at fault.



so  how do "we" determine which cases have merit and deserve to go to trial?


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## HowieT2 (Oct 1, 2010)

bvibert said:


> I'm talking about situations where it's clear to sensible people that the plaintiff is at fault.  I'm not necessarily interested about what law may or may not determine if the plaintiff is indeed not at fault because I don't hold as much faith in the laws as you do.
> 
> That's the basis of my argument that most of you just aren't seeing.  I don't have faith in the justice system to do the right thing in many cases.  Arguing that a case is fair just because the legal system says it is doesn't work for me when it's the legal system itself that I'm calling into question.  Apparently not an easy proposition to grasp for those who's livelihoods depend on the legal system...
> 
> There's fundamentally different ideals in play here, one is not necessarily more right or wrong than the other.  I'm willing to agree to disagree.



Yes I disagree.  I prefer a system governed by laws enacted by a democratically elected legislative body as opposed to Bvibert, the all knowing.  and you are correct, there are many places like Russia, Venezuela, Iran, etc. where they have systems just the way you like it.


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## campgottagopee (Oct 1, 2010)

Best thread ever---pissed off, mean mods, and cool headed lawyers going at it. I dig it, please keep up the good work, very entertaining.


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## HowieT2 (Oct 1, 2010)

JimG. said:


> Hmmmm....
> 
> I used to tihnk this way, but I have come to realize that the legal system and lawyers are really a reflection of society at large. Society and the way we go about things as a society are to blame, not the lawyers. They are just filling certain needs.
> 
> ...



I'm not disagreeing with you, but I just want to correct some of how you describe the "no-fault" system.
First of all, "No-Fault" automobile insurance systems were promoted by the insurance industry back in the 1970's as that eras tort reform.  They were vehemently opposed by the bar as the "end of the world."  It is a basic bargain, in exchange for payment of medical expenses and lost earnings regardless of fault, there is no right to sue for injuries sustained in a motor vehicle accident, unless those injuries are deemed "serious" as defined in the statute.  The idea was to eliminate smaller cases from court and deal with them administratively.
"No-fault" only applies to medical expenses and lost earnings.  It does not apply to property damage.  If you have coverage under your policy, your property damages are paid for by your carrier.  If you don't agree that they are paying the full amount you have lost, you can  bring an action for breach of contract.  Whatever, your carrier pays you, is then recouped from the other party's carrier depending on who is at fault.  If you don't have collision coverage on your policy, you must seek compensation from the other party based on who is at fault.
The criminal analogy is not really appropriate.  If you commit a crime such as intentionally or recklessly hitting someone/something with your vehicle, you can go to jail, just as you would for breaking into a house.  Driving a car while intoxicated is another example.  The law is based on the fact that we deem merely operating a vehicle under the influence as "reckless" conduct. But if you merely cause a car accident because you were negligent, in other words, you didn't intend to cause the accident, but merely acted carelessly and the accident resulted, then you haven't violated the law and are merely responsible for the damages you have caused.

and also, while a criminal may be ordered to pay restitution, you are not likely to actually get restitution, since criminals generally don't have assets (or at least not those you could find).


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## mondeo (Oct 1, 2010)

HowieT2 said:


> I purposefully didnt single out the insurance industry, because it is not them alone. It is big business in general through the US chamber of commerce and various "grass roots" entities they fund, and the republican party. All are pursuing their legitimate interests. The republican party because of it's ties to big business, because trial lawyers overwhelmingly support democrats, and it plays well to the masses to blame the lawyers. If you think lawyers have the anything compared to the means of these three, you are mistaken. and they don't need "tort deform" to win. As I stated earlier, total claims paid out have been steady for 20 years. no growth, even for inflation, not to mention health care inflation. They have already won.


Blaming big business is the single most profitable thing the media can do. There is _nothing_ that sells better. Toyota, ExxonMobil, BP, AIG, GM, Big Pharma, whatever. All of our problems are because of them. Democrats play this fear of big business hard, and it offsets any of their funding deficiencies.

I'm willing to respect the rules of the board and drop the politics if you are, but I'm not just going to let backhanded slaps at the party you love to hate slide.


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## mondeo (Oct 1, 2010)

campgottagopee said:


> Best thread ever---pissed off, mean mods, and cool headed lawyers going at it. I dig it, please keep up the good work, very entertaining.


Only one mod, last I checked.

And I think the engineers have been pretty level headed.


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## hammer (Oct 1, 2010)

SkiDork said:


> Agreed, but thats not the way it works in the legal system.  You can still sue even with the liability statement on the ticket.  Whether or not you'll win is a different story.  But the consequence is ski areas will simply eliminate the jumps so as to not have to potentially defend suits such as this.  it sux but its reality.


And while I don't like frivolous suits, I'm glad that signing liability statements doesn't prohibit lawsuits...and I'll explain why.

The local school district requires that we sign a liability release statement for our kids to participate in any after school activity, including field trips, sports games, etc.  Sure, we could refuse to sign, but it would significantly curtail what our kids could do at/with the school.

I don't care what is in the release statement, if my kids were to get hurt on a school activity and the school were negligent, I'd still take legal action if I felt the need to do so...and my guess is that the release would not be worth the paper it was printed on.


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## marcski (Oct 1, 2010)

!  It is interesting that you cannot add any smiley's (from the smiley thingy) while in the edit post mode....I wrote something...and then deleted it and wanted to just make a smiley face..but couldn't


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## mondeo (Oct 1, 2010)

/.


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## mondeo (Oct 1, 2010)

:smash:.


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## HowieT2 (Oct 1, 2010)

mondeo said:


> Blaming big business is the single most profitable thing the media can do. There is _nothing_ that sells better. Toyota, ExxonMobil, BP, AIG, GM, Big Pharma, whatever. All of our problems are because of them. Democrats play this fear of big business hard, and it offsets any of their funding deficiencies.
> 
> I'm willing to respect the rules of the board and drop the politics if you are, but I'm not just going to let backhanded slaps at the party you love to hate slide.



Sorry.  I don't disagree with what you are saying about the democrats.  I am no fan of them either.  I was merely trying to explain why it is that there is a generally accepted view of the civil justice system, that is for the most part, an "urban myth".  If you'd like to continue this discussion offline, PM me and I would be glad to respond.  I'm not getting  anything done today anyway and there is no snow to track.


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## campgottagopee (Oct 1, 2010)

mondeo said:


> Only one mod, last I checked.
> 
> And I think the engineers have been pretty level headed.




Yes, you are correct---have 2 threads blending into one in my head...carry on.


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## HowieT2 (Oct 1, 2010)

hammer said:


> And while I don't like frivolous suits, I'm glad that signing liability statements doesn't prohibit lawsuits...and I'll explain why.
> 
> The local school district requires that we sign a liability release statement for our kids to participate in any after school activity, including field trips, sports games, etc.  Sure, we could refuse to sign, but it would significantly curtail what our kids could do at/with the school.
> 
> I don't care what is in the release statement, if my kids were to get hurt on a school activity and the school were negligent, I'd still take legal action if I felt the need to do so...and my guess is that the release would not be worth the paper it was printed on.



Good example.  last year a NYC public school took little kids, like 5 year old kindergartners, to the beach and left them there completely unsupervised.  one of the kids drowned.


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## mondeo (Oct 1, 2010)

campgottagopee said:


> Yes, you are correct---have 2 threads blending into one in my head...carry on.


Ah, found it.

Pass the popcorn?


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## campgottagopee (Oct 1, 2010)

mondeo said:


> Ah, found it.
> 
> Pass the popcorn?



Yes please....I prefer Kettle Corn if I have a choice.


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## SkiDork (Oct 1, 2010)

HowieT2 said:


> Good example.  last year a NYC public school took little kids, like 5 year old kindergartners, to the beach and left them there completely unsupervised.  one of the kids drowned.



ummmm - those were middle schoolers.  And they weren't unsupervised.  But there were no lifeguards


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## bvibert (Oct 1, 2010)

campgottagopee said:


> Best thread ever---pissed off, mean mods, and cool headed lawyers going at it. I dig it, please keep up the good work, very entertaining.



Who's pissed off?


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## bvibert (Oct 1, 2010)

bvibert said:


> Who's pissed off?



If I was pissed off I surely would have started editing and deleting post or locking threads, since that's what I always do, right?


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## bvibert (Oct 1, 2010)

gmcunni said:


> so  how do "we" determine which cases have merit and deserve to go to trial?



Clearly as long as I think its alright is all that matters. :lol:


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## HowieT2 (Oct 1, 2010)

SkiDork said:


> ummmm - those were middle schoolers.  And they weren't unsupervised.  But there were no lifeguards



Who knows what the truth is.  Exactly why we have a court system and laws to resolve disputes.  Two sides to every story.


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## JimG. (Oct 1, 2010)

HowieT2 said:


> I'm not disagreeing with you, but I just want to correct some of how you describe the "no-fault" system.
> First of all, "No-Fault" automobile insurance systems were promoted by the insurance industry back in the 1970's as that eras tort reform.  They were vehemently opposed by the bar as the "end of the world."  It is a basic bargain, in exchange for payment of medical expenses and lost earnings regardless of fault, there is no right to sue for injuries sustained in a motor vehicle accident, unless those injuries are deemed "serious" as defined in the statute.  The idea was to eliminate smaller cases from court and deal with them administratively.
> "No-fault" only applies to medical expenses and lost earnings.  It does not apply to property damage.  If you have coverage under your policy, your property damages are paid for by your carrier.  If you don't agree that they are paying the full amount you have lost, you can  bring an action for breach of contract.  Whatever, your carrier pays you, is then recouped from the other party's carrier depending on who is at fault.  If you don't have collision coverage on your policy, you must seek compensation from the other party based on who is at fault.
> The criminal analogy is not really appropriate.  If you commit a crime such as intentionally or recklessly hitting someone/something with your vehicle, you can go to jail, just as you would for breaking into a house.  Driving a car while intoxicated is another example.  The law is based on the fact that we deem merely operating a vehicle under the influence as "reckless" conduct. But if you merely cause a car accident because you were negligent, in other words, you didn't intend to cause the accident, but merely acted carelessly and the accident resulted, then you haven't violated the law and are merely responsible for the damages you have caused.
> ...



Thanks for the clarification...part of my very simplistic post was to point out the somewhat random application of the term "fault" which your post clarifies and also clouds even further.

Also, the use of the home invasion example was more directed at the vandalism angle and less at the breaking and entering (criminal) angle. I was referring more to teenagers who invade and vandalize homes for fun. In those cases there are certainly assets that can be gone after even if those assets belong to the parents.

In addition, my own way of looking at these things kind of shines through...to me, driving and texting is just as bad as driving while intoxicated. While the law defines this behaviour as reckless when damage or injury occurs, to me it is all the same thing...criminal. 

I'd better stop now.


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## bvibert (Oct 1, 2010)

HowieT2 said:


> Who knows what the truth is.  Exactly why we have a court system and laws to resolve disputes.  Two sides to every story.



No one is arguing that we shouldn't have a court system or laws, some just think we need a better system.  Way to continually miss the point, or is it that you're purposely misstating the other side in an attempt to make your argument stronger???


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## Black Phantom (Oct 2, 2010)

bvibert said:


> No one is arguing that we shouldn't have a court system or laws, some just think we need a better system.  Way to continually miss the point, or is it that you're purposely misstating the other side in an attempt to make your argument stronger???



He hits the nail on the head repeatedly. I appreciate the insight he and the others have brought to light on the inner workings of the legal system.

Perhaps if you are called to jury service you will seize the opportunity to experience a part of the system that you apparently disdain.


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## legalskier (Oct 2, 2010)

*Ct. Comparative and Contributory Negligence*

If Malaguit can get his case past a motion for directed verdict when he rests (which is a big if), he won't receive any award if the jury finds he was at least 51% negligent when he took that jump, according to this:

_Comparative negligence allows an injury victim to seek compensation for any part of his or her injury that wasn't their fault. For example, if you are involved in a car accident and you are partially at fault for that accident, you can still seek damages from the other parties who were also at fault for your injuries based on their percentage of fault.
Contributory negligence is a defense that can prevent victims from collecting any compensation for an accident for which they are in any way to blame. "Pure contributory negligence" does still exist in some states - meaning that if a victim is found in any way at fault for his or her personal injury, the victim cannot collect any compensation from other parties for the injury. This defense has been modified in many states so that a victim who is less than 50% at fault for his or her accident can still seek compensation for injuries.  "Pure comparative negligence" is kind of the opposite of pure contributory negligence - it allows a victim of injury who may have been mostly responsible for the accident to collect damages from the parties that were less at fault for the injury. "Modified comparative negligence," however, allows a victim to recover only if their fault level is below a certain percentage. Laws about comparative and contributory negligence vary widely state by state. It's important to know how these laws can affect your injury lawsuit.
*Connecticut Negligence Laws
Connecticut is a "pure comparative negligence" state. According to Connecticut state law, a party who is up to 50% at fault for an accident can still seek compensation for any personal injury incurred. If you are 51% or more at fault, you cannot seek compensation in the state of Connecticut.* Certain additional statutes may apply to pure comparative negligence in the state of Connecticut - so the way it affects your case may vary._
http://www.totalinjury.com/connecticut-negligence.aspx

For example, in the Blonski case the jury found she was 30% negligent, so she was awarded 70% of the overall damages number the jury had calculated. If they had found she was > 50% negligent, she would have received nothing, i.e. the defendant was 21% away from a total win.


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## mister moose (Oct 2, 2010)

mondeo said:


> Snarky, yes, and possibly poorly worded. In essence, it seems to me like a few of the lawyers involved with this thread are blasting insurance companies because, from their point of view, insurance companies are faceless entities that are pushing tort reform to squash personal rights in pursuit of even more massive profits. People typically have a disdain for lawyers because they're percieved as faceless entities bent on distorting the laws governing liability in pursuit of even more wealth. Neither is a realistic point of view, insurance companies work the same way as any other while providing a valuable good. Just like lawyers work - if there wasn't demand for their services, there wouldn't be money to be made their.
> 
> Reality check here. The Travellers Companies (essentially pure insurance) made $3.6 billion (operating income) last year on revenue of $25 billion. Other Dow components, operating income where available: Intel, $5.7 billion on $35.1 billion. Boeing $3.9 on $60.9. Home Depot $4.4 on $71.3 Merck $4.8 on $27.4 Walt Disney $5.8 on $36.1. UTC $4.7 on $59.8. Yeah, insurance gives margins on the higher end of the range, but it's not out of whack with the rest of the economy. The whole "just want to increase profits by reducing costs, no benefit to anyone but themselves" theory is completely out of whack with reality anywhere there's competition. As long as there's competition, a reduction in cost will have some impact to what the consumer pays through increasing supply of the good or service.
> 
> And if you have a mutual fund of any type, YOU are the insurance company. All that work to increase revenues is going towards your retirement. So thank them for that.



Please stop using facts to throw water on the fire here.  We all know how greedy and profit mongering big corporations are, especially insurance companies.  Your numbers show that Travelers made 14.4% (_before taxes_, wut, these evil corporations pay taxes?) and Intel made 16.2% and compared to loveable, sensible Disney who made only 16.0%... and.... and....  wait, how come Mickey made more than Travelers?  Clearly something is wrong with your numbers, I mean Disney is a good company, right?  How could they _possibly_ make more on every dollar of sales than a bad company that rapes and pillages defenseless consumers?

[/sarcasm]

So possibly, just possibly, insurance companies do operate in a competitive environment, and do make market returns on their business when viewed over the entire spectrum of their business?

Our legal system is based on an adversarial process that over its course when viewed by a (supposedly) unbiased judge or jury, will arrive at a well reasoned and fair decision.  Not surprisingly, each side, insurance companies and personal injury lawyers, over the years has developed rhetoric to buttress their position.  Each side has become an outspoken, strong advocate of their employers position.  Each side also has legitimate examples of excess, or unfair, or prejudiced decisions.  As someone once said, it isn't perfect, but it's the best justice system out there so far.

My over riding complaint on the Sundown case, and we have heard many voice the same opinion, is that the pendulum has swung too far away from personal responsibility.  We are tired of cases such as this resulting in sympathy verdicts that end up soothing the injured party (OK, not a bad thing) but penalizing the rest of us financially (through higher cost lift tickets) as well as restrict our fun in the future (no more tree skiing, jumps, terrain parks, etc)  I know I am tired of being unable to order a medium rare hamburger lest I get poisoned, and unable to go sledding at the local farmer's hill lest I injure myself, and apparently soon unable to go hiking on MDC land.

Yes, the press is flawed and more often than not gets some facts wrong and leaves others out.  It would obviously be better if we had  the complete story on this case.  

I don't work for a law firm or an insurance company, but I did get injured at Ski Sundown bad enough for a sled ride.  It was partially Sundown's fault as a rocky bare spot wasn't marked.  But unmarked bare spots are part of the known risk of the sport, a risk I assumed.  I didn't even talk with a lawyer, and certainly didn't sue.


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## Geoff (Oct 2, 2010)

mister moose said:


> My over riding complaint on the Sundown case, and we have heard many voice the same opinion, is that the pendulum has swung too far away from personal responsibility.  We are tired of cases such as this resulting in sympathy verdicts that end up soothing the injured party (OK, not a bad thing) but penalizing the rest of us financially (through higher cost lift tickets) as well as restrict our fun in the future (no more tree skiing, jumps, terrain parks, etc)  I know I am tired of being unable to order a medium rare hamburger lest I get poisoned, and unable to go sledding at the local farmer's hill lest I injure myself, and apparently soon unable to go hiking on MDC land.



While I agree with all of this....

I'd point out that ski resorts have gone out of their way to create attractive nuisances.    That terrain park is screaming "come play with me" to testerosterone-ladden low skill 15-year-olds.   If you look at what they've done with teen driving laws recently, it's pretty clear that society believes that teens have lousy judgement.   The barrier to entry in a terrain park is a lift ticket.   Anybody can click into twin tips, put on a tall tee, dangle their suspenders, and claim to be a park rat.   I watch the body bags and medivac helicopters coming out of "The Stash" at Killington and shake my head.   I think that terrain should be limited to people who can pass a competence test.   To get into a novice park, you at least need to watch the safety video so you're not stopping below features or launching off things without a spotter.   To get into a more difficult park, you  at least need to demonstrate that you  can handle the green circle park.   That would prevent the Sundown-style injuries.   People will still get injured but it should cut down on the worst of it.


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## campgottagopee (Oct 2, 2010)

bvibert said:


> If I was pissed off I surely would have started editing and deleting post or locking threads, since that's what I always do, right?



lol...glad you haven't lost your sense of humor.


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## mondeo (Oct 2, 2010)

Geoff said:


> While I agree with all of this....
> 
> I'd point out that ski resorts have gone out of their way to create attractive nuisances. That terrain park is screaming "come play with me" to testerosterone-ladden low skill 15-year-olds. If you look at what they've done with teen driving laws recently, it's pretty clear that society believes that teens have lousy judgement. The barrier to entry in a terrain park is a lift ticket. Anybody can click into twin tips, put on a tall tee, dangle their suspenders, and claim to be a park rat. I watch the body bags and medivac helicopters coming out of "The Stash" at Killington and shake my head. I think that terrain should be limited to people who can pass a competence test. To get into a novice park, you at least need to watch the safety video so you're not stopping below features or launching off things without a spotter. To get into a more difficult park, you at least need to demonstrate that you can handle the green circle park. That would prevent the Sundown-style injuries. People will still get injured but it should cut down on the worst of it.


They do that at Southington, I think. I think theirs is too nannying, but not an idea entirely without merit. Also a good place to teach some ettiquite, and a way to keep people who have no clue how a park works from skiing through and screwing things up. There was one point last year where I was a split second away from the point of no return on one of the Dreamaker jumps when some non-park skier decided to ski through the landing area. Just forced me to skip the jump, but that could have been bad.


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## legalskier (Oct 4, 2010)

The plaintiff's expert witness whose site I linked to last week testified on Friday. Here's an account of it, not including all the reader posts:

_*Testimony continues in suit against Ski Sundown*
Published: Saturday, October 02, 2010
LITCHFIELD — Testimony on a lawsuit against Ski Sundown continued Friday with an expert witness speaking on behalf of James Malaguit, who was paralyzed after falling from a jump four years ago at the facility.
Ski safety expert Stan Gale of Golden Col., testified that the terrain park where the accident occurred is the most dangerous part of a ski area and that there was no evidence that Ski Sundown had adequate markings, supervision or warning signs in the terrain park at the time of the incident.
James Malaguit, 19, was a high school sophomore while visiting Ski Sundown with his family on Feb. 17, 2006, when he lost his balance coming off a man-made jump in the terrain park on the ski area’s Exhibition run. He landed on his head. His injuries have left him paralyzed from the chest down. He was not wearing a helmet or goggles at the time of the incident.
During Friday’s proceedings, the plaintiff’s attorney, Ralph Monaco of New London, further questioned Gale on his claims.
“Mr. Gale, did you see any evidence that there was any perimeter security, poles, flags, supervision, or signage where James entered the terrain park?”
Gale said he determined, after conducting an investigation at Ski Sundown, that there was inadequate safety for the terrain park.
“Did you see any evidence that trail was groomed when James went in the terrain park?” Monaco asked.
Gale noted that he skied the same run and at the same time Malaguit’s incident occurred and that the trail was un-groomed.
“Have you seen any evidence that ski sundown had any fence separating the terrain feature from Exhibition to the left side of that trail?” Monaco asked.
Gale denied seeing any evidence of a fence in his ventures to Ski Sundown.
Gale, an employee of Rock Mountain Consultation LLC, has visited approximately 135 ski areas, investigated nearly 100 ski areas and has never in his life witnessed a ski area that treated terrain features the way Ski Sundown did, according to his testimony.
“I have never seen it in magazines, photographs, anywhere in the industry,” Gale testified, referring to Ski Sundown’s lack of safety and proper equipment in the terrain park.
“I never heard of it (lack of warning signs and safety) in the modern age of risk management,” Gale stated. “In the early 2000s ski areas had to do something to change the safety of the sport.”
Ski Sundown did not meet industry standards with regards to terrain park maintenance, according to Gale.
“He was allowed to be there, that is what caused it,” Gale stated when questioned about the cause of Malaguit’s injury. “It was Russian roulette with a smoking gun, it was bound to happen.”
This case is scheduled to continue next week. Jeffrey Perry with Comprehensive Rehabilitation Consultants will testify about Malaguit’s spinal cord injury._
http://www.registercitizen.com/articles/2010/10/02/news/doc4ca66d63e90da745694722.txt


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## o3jeff (Oct 4, 2010)

legalskier said:


> The plaintiff's expert witness whose site I linked to last week testified on Friday. Here's an account of it, not including all the reader posts:
> 
> _*Testimony continues in suit against Ski Sundown*
> Published: Saturday, October 02, 2010
> ...


Wow, he just so happened to be skiing with this ski expert at the same time, unbelievable.


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## gmcunni (Oct 4, 2010)

> Feb. 17, 2006, when he lost his balance coming off a man-made jump in *the terrain park on the ski area’s Exhibition run*.



what was the layout in 2006?  terrain park on Exhibitin???  or is more like the jump was on the bottom of stinger (as is today) and the guy skied exhibition and crossed over? 


i believe i read earlier that he crossed 3 trails to get to the jump, so is the "expert" or lawyer saying the jump being on Exhibition (a blue trail) rather than stinger (black) a disingenuous way of describing the scenario in the plaintiff's favor?


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## SkiDork (Oct 4, 2010)

when he said he skied the same run at the same time, does that mean the same day?  If so, how odd that an expert ski witness is there when it happens.  If not, what the hell does it matter if its groomed or not on another day?


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## HowieT2 (Oct 4, 2010)

bvibert said:


> No one is arguing that we shouldn't have a court system or laws, some just think we need a better system.  Way to continually miss the point, or is it that you're purposely misstating the other side in an attempt to make your argument stronger???



I'm glad to see you accept that we need a court system governed by laws.  As with any other system, improvements are always needed, but the status quo works better than we are led to believe.


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## legalskier (Oct 4, 2010)

o3jeff said:


> Wow, he just so happened to be skiing with this ski expert at the same time, unbelievable.



This is why, as HowieT2 pointed out last week, press accounts of trials and legal proceedings aren't very reliable. For example, Gale's opinion-- “*It was Russian roulette with a smoking gun*, it was bound to happen"--probably was struck from the record by the judge, but the reporter mentioned it anyway...because it makes good copy of course.  
When I was a juror in the case I mentioned earlier, I read the press accounts afterwards; they were so inaccurate that I thought the reporters had been attending a different trial. It's a matter of perception, and the only one that counts is the jury's.


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## legalskier (Oct 4, 2010)

gmcunni said:


> what was the layout in 2006?  terrain park on Exhibitin???  or is more like the jump was on the bottom of stinger (as is today) and the guy skied exhibition and crossed over?
> i believe i read earlier that he crossed 3 trails to get to the jump, so is the "expert" or lawyer saying the jump being on Exhibition (a blue trail) rather than stinger (black) a disingenuous way of describing the scenario in the plaintiff's favor?





SkiDork said:


> when he said he skied the same run at the same time, does that mean the same day?  If so, how odd that an expert ski witness is there when it happens.  If not, what the hell does it matter if its groomed or not on another day?



I'm sure Sundown's lawyers were all over this, but the article gives us no insight.


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## Smellytele (Oct 4, 2010)

The damning evidence from him is about fencing and signage which most ski areas do have around their parks. Now we know why they are.


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## mister moose (Oct 4, 2010)

Smellytele said:


> The damning evidence from him is about fencing and signage which most ski areas do have around their parks. Now we know why they are.



Yeah, I'm sure the signs on hair dryers warning you not to use them in the shower or bathtub really cut down on the number of idiots that would consider that an ok thing to do.  If you're smart enough to read and understand the label, you're smart enough to know not to take any electrical appliance into the shower with you.

I wonder how much a sign would have made a meaningful difference to a 15 year old who testified that he saw the jump on the way up the chair and wanted to try it...

The sign only deflects future personal injury lawyers from complaining there was no sign.  It does nothing to 1) change the nature of a 15 year old,  2) add to the judgement of a 15 year old,  3) change the assumption of risk by anyone who tries the jump, 4) require that anyone even read the sign.

I notice there is no claim whatsoever of "I didn't see the jump was coming", or "I didn't mean to take the jump, it wasn't adequately marked"


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## jaywbigred (Oct 4, 2010)

mondeo said:


> Yeah, they do that. But at the same time, the American Bar Association is doing their own PR job, partially represented by that link you gave. Both perfectly reasonable things to do, neither side to be trusted entirely. Both sides have some basis in truth, and often don't even argue the same points. Both sides position the other as the bad guy. But if the PR campaign was as one sided as Howie was saying, then the tort reform would already be a done deal. I'm fully aware of the way the game works, my company's currently involved in a massive single contract with the government where the exact same type of stuff is going on.
> 
> I'm not trying to attack the lawyers, I'm trying to defend the insurance companies from the lawyers' attacks. I've even thrown in a defense of the lawyers here and there - to me, in this issue they're on opposing sides, both having their points. What's right, as often is in the case, is somewhere in the middle.


 Mondeo, ftw!!!



legalskier said:


> If Malaguit can get his case past a motion for directed verdict when he rests (which is a big if), he won't receive any award if the jury finds he was at least 51% negligent when he took that jump, according to this:
> 
> _Comparative negligence allows an injury victim to seek compensation for any part of his or her injury that wasn't their fault. For example, if you are involved in a car accident and you are partially at fault for that accident, you can still seek damages from the other parties who were also at fault for your injuries based on their percentage of fault.
> Contributory negligence is a defense that can prevent victims from collecting any compensation for an accident for which they are in any way to blame. "Pure contributory negligence" does still exist in some states - meaning that if a victim is found in any way at fault for his or her personal injury, the victim cannot collect any compensation from other parties for the injury. This defense has been modified in many states so that a victim who is less than 50% at fault for his or her accident can still seek compensation for injuries.  "Pure comparative negligence" is kind of the opposite of pure contributory negligence - it allows a victim of injury who may have been mostly responsible for the accident to collect damages from the parties that were less at fault for the injury. "Modified comparative negligence," however, allows a victim to recover only if their fault level is below a certain percentage. Laws about comparative and contributory negligence vary widely state by state. It's important to know how these laws can affect your injury lawsuit.
> ...


 I was wondering if CT was a comp. state. Thanks for the info!



Geoff said:


> While I agree with all of this....
> 
> I'd point out that ski resorts have gone out of their way to create attractive nuisances.    That terrain park is screaming "come play with me" to testerosterone-ladden low skill 15-year-olds.   If you look at what they've done with teen driving laws recently, it's pretty clear that society believes that teens have lousy judgement.   The barrier to entry in a terrain park is a lift ticket.   Anybody can click into twin tips, put on a tall tee, dangle their suspenders, and claim to be a park rat.   I watch the body bags and medivac helicopters coming out of "The Stash" at Killington and shake my head.   I think that terrain should be limited to people who can pass a competence test.   To get into a novice park, you at least need to watch the safety video so you're not stopping below features or launching off things without a spotter.   To get into a more difficult park, you  at least need to demonstrate that you  can handle the green circle park.   That would prevent the Sundown-style injuries.   People will still get injured but it should cut down on the worst of it.


 I think they do some form of this at Stratton. It is very effective.



mister moose said:


> Yeah, I'm sure the signs on hair dryers warning you not to use them in the shower or bathtub really cut down on the number of idiots that would consider that an ok thing to do.  If you're smart enough to read and understand the label, you're smart enough to know not to take any electrical appliance into the shower with you.


 I have to disagree with this. I think as a little kid, it was one of those stickers on my Mom's hairdryer that actually taught me the concept that electricity and water are a bad combo.



mister moose said:


> I wonder how much a sign would have made a meaningful difference to a 15 year old who testified that he saw the jump on the way up the chair and wanted to try it...
> 
> The sign only deflects future personal injury lawyers from complaining there was no sign.  It does nothing to 1) change the nature of a 15 year old,  2) add to the judgement of a 15 year old,  3) change the assumption of risk by anyone who tries the jump, 4) require that anyone even read the sign.


 Again, I disagree. I think a sign can make a big difference to a 15 year old. I know it did for me as a teenager...I think it was at Sunday River, we had a group of us 13-15 and saw I think it was White Heat from the lift. Decided to give it a shot, but they forced you to ski through a gate with a sign over it about the severity of the terrain, the likelihood of injury, and so forth. It was enough for us to skip it. The next year when we were there at the same time, we were all better skiers, and were able to ski it.


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## mister moose (Oct 4, 2010)

jaywbigred said:
			
		

> I have to disagree with this. I think as a little kid, it was one of those stickers on my Mom's hairdryer that actually taught me the concept that electricity and water are a bad combo.
> 
> 
> Again, I disagree. I think a sign can make a big difference to a 15 year old. I know it did for me as a teenager...I think it was at Sunday River, we had a group of us 13-15 and saw I think it was White Heat from the lift. Decided to give it a shot, but they forced you to ski through a gate with a sign over it about the severity of the terrain, the likelihood of injury, and so forth. It was enough for us to skip it. The next year when we were there at the same time, we were all better skiers, and were able to ski it.



I agree that signs & labels can perform some function.  Signs cannot prevent all accidents, nor anticipate all hazzards.  I think it is misplaced to look to a sign, or lack thereof to place blame in an accident such as this.  Signs will multiply to an overload level if this solution is subscribed to.

After writing the previous post, it occurred to me that while a sign may not be the root cause, other forms of marking man made terrain changes that a normal individual would be taken by surprise by would be in order.  Cases in point:  Outlining in day-glo paint jumps, ramp edges, and other potentially hazardous park features.  Roping that indicates a segregated area for a different skill level exists ahead.  Pictograph signs like I saw last year ahead of seeded mogul fields.  These types of markings alert you to the fact that something unusual is ahead, and don't require the ability to read english to understand.  I haven't read where any marking at all was present in this case, perhaps there was.  Even so, the recognition of the ski jump as a method to launch you into the air was something the plaintiff was well aware of, he saw it from multiple angles on the ride up, and decided he wanted to try it.  The only thing a sign could ad is the specific injury warning at this specific jump.

Shall we require a similar sign at the entrance to all tree runs?  At the loading area of all lifts?  In front of all snow gun hydrants?  At the top of all trails that have snowmaking in progress?  In parking lots advising that moving cars might be present?  In the lodge warning of drinking and driving, consuming undercooked foods, or trans fats and high fructose corn syrup?  There has to be a limit.

What would be the basis of the suit if his injury resulted from impacting a tree at high speed with no helmet?  That there was no helmet sign at the top of the trail?  

Don't get me wrong here.  I agree with Geoff that some sort of terrain park pass with attendant education on terrain park safety is a good idea.  Passing through a fenced turnstile type entrance with good signage at terrain parks is a good idea.  What I'm having trouble with is finding Sundown responsible for an injury on a feature that was knowingly and intentionally taken by a skier at a planned sufficient speed to go airborne.


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## HowieT2 (Oct 4, 2010)

mister moose said:


> I agree that signs & labels can perform some function.  Signs cannot prevent all accidents, nor anticipate all hazzards.  I think it is misplaced to look to a sign, or lack thereof to place blame in an accident such as this.  Signs will multiply to an overload level if this solution is subscribed to.
> 
> After writing the previous post, it occurred to me that while a sign may not be the root cause, other forms of marking man made terrain changes that a normal individual would be taken by surprise by would be in order.  Cases in point:  Outlining in day-glo paint jumps, ramp edges, and other potentially hazardous park features.  Roping that indicates a segregated area for a different skill level exists ahead.  Pictograph signs like I saw last year ahead of seeded mogul fields.  These types of markings alert you to the fact that something unusual is ahead, and don't require the ability to read english to understand.  I haven't read where any marking at all was present in this case, perhaps there was.  Even so, the recognition of the ski jump as a method to launch you into the air was something the plaintiff was well aware of, he saw it from multiple angles on the ride up, and decided he wanted to try it.  The only thing a sign could ad is the specific injury warning at this specific jump.
> 
> ...



Great point.  Dont know what the defense lawyer is arguing or what his cross examination of the plaintiffs expert consisted of, but this is where I would go.  Signage is to warn of unexpected dangers.  Plaintiff admitted that he had seen the jump and made a conscious effort to try it.  What would a sign have changed?
The jury is the one deciding where to draw that line, what the limits are and what is reasonable.  Not some, judge, politician or government bureaucrat each of whom have the potential to have  conflicts of interest.  But a group of ordinary citizens, with no stake in the outcome.


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## mondeo (Oct 4, 2010)

How much leeway do both sides get during jury selection? In the WH Res case, would anyone who had riden there basically been thrown out? Any MTB rider? In this case, any skier, Sundown skier, park rat, etc?

I'm guessing that anyone who had ridden at WH Rez would automatically be against the plaintiff, seeing as how they'd know how stupid you'd have to be to ride into that gate. I'd think that would be grounds to dismissing anyone as a potential juror, prior knowledge of such details.


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## Tin Woodsman (Oct 4, 2010)

mister moose said:


> I agree that signs & labels can perform some function.  Signs cannot prevent all accidents, nor anticipate all hazzards.  I think it is misplaced to look to a sign, or lack thereof to place blame in an accident such as this.  Signs will multiply to an overload level if this solution is subscribed to.
> 
> After writing the previous post, it occurred to me that while a sign may not be the root cause, other forms of marking man made terrain changes that a normal individual would be taken by surprise by would be in order.  Cases in point:  Outlining in day-glo paint jumps, ramp edges, and other potentially hazardous park features.  Roping that indicates a segregated area for a different skill level exists ahead.  Pictograph signs like I saw last year ahead of seeded mogul fields.  These types of markings alert you to the fact that something unusual is ahead, and don't require the ability to read english to understand.  I haven't read where any marking at all was present in this case, perhaps there was.  Even so, the recognition of the ski jump as a method to launch you into the air was something the plaintiff was well aware of, he saw it from multiple angles on the ride up, and decided he wanted to try it.  The only thing a sign could ad is the specific injury warning at this specific jump.
> 
> ...


Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability?  What I mean by that is if someone has such a pass and then hurts themselves it the park, could they sue the ski area for insufficiently judging their skill level?   Plaintiffs attorneys would surely claim that their client thought they would be safe since the imprimatur of safety had been granted to them by the defendant, no?  

Either way, one answer is to have video surveillance of your terrain park at all times.   It would have been helpful to capture this self-professed "intermediate to advanced" skier booking down Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.


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## campgottagopee (Oct 4, 2010)

Tin Woodsman said:


> Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.



Dude, those are my people!!


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## HowieT2 (Oct 4, 2010)

mondeo said:


> How much leeway do both sides get during jury selection? In the WH Res case, would anyone who had riden there basically been thrown out? Any MTB rider? In this case, any skier, Sundown skier, park rat, etc?
> 
> I'm guessing that anyone who had ridden at WH Rez would automatically be against the plaintiff, seeing as how they'd know how stupid you'd have to be to ride into that gate. I'd think that would be grounds to dismissing anyone as a potential juror, prior knowledge of such details.



Jury selection rules vary by venue.  I have no idea how its done in CT.  In NY state courts the lawyers have wide latitude in questioning the jurors as its usually done unsupervised .  Familiarity with the scene of an accident would not disqualify a juror from serving.  However, if that juror expressed a prejudged opinion about the outcome or indicated that they would base their decision on their recollection of the scene as opposed to the evidence adduced, they would be.
In Federal court the judges pick the juries based on questions devised with the lawyers input.


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## HowieT2 (Oct 4, 2010)

Tin Woodsman said:


> Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability?  What I mean by that is if someone has such a pass and then hurts themselves it the park, could they sue the ski area for insufficiently judging their skill level?   Plaintiffs attorneys would surely claim that their client thought they would be safe since the imprimatur of safety had been granted to them by the defendant, no?
> 
> Either way, one answer is to have video surveillance of your terrain park at all times.   It would have been helpful to capture this self-professed "intermediate to advanced" skier booking down Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.



I haven't seen any cases like that, but I would think a pass would not increase the chances of liability.  These cases are generally based on an allegation that the resort created a hazardous condition which the plaintiff was unaware of or could not appreciate as a result of a failure to warn of same.  Hence the plaintiffs expert emphasis on the lack of signage.  I think the pass would take care of that pretty well.


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## o3jeff (Oct 4, 2010)

Tin Woodsman said:


> Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability?  What I mean by that is if someone has such a pass and then hurts themselves it the park, could they sue the ski area for insufficiently judging their skill level?   Plaintiffs attorneys would surely claim that their client thought they would be safe since the imprimatur of safety had been granted to them by the defendant, no?
> 
> Either way, one answer is to have video surveillance of your terrain park at all times.   It would have been helpful to capture this self-professed "intermediate to advanced" skier booking down Exhibition and cutting over to the park with his football jacket, antennae style ski poles, and jeans.



Mount southington makes you watch a video and get an additional pass to use their terrain park. I assume they do this to eliminate being sued.
http://www.mountsouthington.com/content/terrain-parks


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## legalskier (Oct 4, 2010)

HowieT2 said:


> Dont know what the defense lawyer is arguing or what his cross examination of the plaintiffs expert consisted of, but this is where I would go.  Signage is to warn of unexpected dangers.  Plaintiff admitted that he had seen the jump and made a conscious effort to try it.  What would a sign have changed?



Or how about there was some signage, but....

_Q: Mr Malaguit, you say that the trail wasn't marked as dangerous at the point you crossed over laterally from another trail midway down the mountain before you took that jump, correct?
A: Yes, or else I wouldn't have tried it.
Q: But you had ridden the chair to the top of the lift earlier and had skied past the top of that trail, correct?
A: Yes, I believe I did.
Q: And the top of that trail did have a sign warning its level of dangerousness, correct?
A: Er...yes, I think it did.
Q: And because of that warning, you decided in your earlier runs not to ski that trail from the top?
A: That's right.
Q: So when you entered the trail midway down the mountain to take the jump you'd scoped out from the lift, isn't it true that you had in fact already seen signs warning that this trail was dangerous?
A: Um...yes.
Q: And yet you still proceeded onto this dangerous trail?
A: Um, er...
_
(Not being familiar with Sundown, I'm assuming there was a some signage at the top of that trail.)


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## legalskier (Oct 4, 2010)

Tin Woodsman said:


> Here's a question for the lawyers out there - would a terrain park pass potentially expose the ski area to even more liability?



The only time I paid for an additional pass to enter a park area was when MC cordoned off a large section of Vernon Peak and installed some features there a few years ago. You could only access it if you had the pass, and you could only enter that area from a choke point off the lift that had huge warning signs on either side. There was no way anyone could claim they weren't warned.


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## gmcunni (Oct 4, 2010)

o3jeff said:


> Mount southington makes you watch a video and get an additional pass to use their terrain park. I assume they do this to eliminate being sued.
> http://www.mountsouthington.com/content/terrain-parks



language on web site says they "urge you" but don't require you to watch the vid.


> All patrons interested in using our terrain parks are urged to watch the safety video which is available from our website or in the Red Barn Cafeteria. To obtain a DROP ZONE Pass valid for the entire 2010-2011 ski season you must fill out a form providing your name and e-mail address (if you have one).  The fee is $10, which covers our processing costs as well as maintenance of the terrain park for your DROP ZONE enjoyment.



regardless, this is F'd up IMHO. what's next, hand holding on the lifts for anyone who's scared and wants their mommy?


this thread  makes me wonder if Mohawk has never done a park just for the liability issue.  i just thought they were behind the times.


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## Madroch (Oct 4, 2010)

HowieT2 said:


> Jury selection rules vary by venue.  I have no idea how its done in CT.  In NY state courts the lawyers have wide latitude in questioning the jurors as its usually done unsupervised .  Familiarity with the scene of an accident would not disqualify a juror from serving.  However, if that juror expressed a prejudged opinion about the outcome or indicated that they would base their decision on their recollection of the scene as opposed to the evidence adduced, they would be.
> In Federal court the judges pick the juries based on questions devised with the lawyers input.



In CT state Court= we still have individual voire dire-- and usually not even in the presence of a judge for routine civil matters. Each lawyer gets to question each juror him or her self with only the lawyers, and possibly a clerk present. Wide latitude would be an understatement-- but you have to remember not to be unduly invasive (which is difficult in some cases) or aggressive, because if the juror stays and you offended them-- your client will pay.  If you have a challenge for cause on the grounds that the juror has expressed an inability or unwillingness to apply the facts to the law, you take it to the judge, who then usually rehabilitates the juror by reminding them it is there duty to apply the facts to the law.  This usually works, in the cases where the juror is just looking to void jury duty.  If the juror has life experiences or strongly held beliefs which would make it difficult for them to be impartial, they are excused.  If a juror you don't like is not excused for cause- you can use a preemptory- which you can use for any legal (e.g. can't try to strike all the females because there females, etc) reason.  Usually have 3 preemptories, but that is subject to discretion of the trial judge-- and is usually affected by number of parties (usually defendants) whose interests are not necessarily alligned (I may be confusing state with federal here-- can't recall the exact state court rule at the moment)..

Fed is generally same noted by HowieT2-- but each Judge has there own twists- with some letting the lawyers question the panel of prospetive jurors directly, or sometimes even individual jurors (either in front of the other jurors or at side bar).


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## mondeo (Oct 4, 2010)

o3jeff said:


> Mount southington makes you watch a video and get an additional pass to use their terrain park. I assume they do this to eliminate being sued.
> http://www.mountsouthington.com/content/terrain-parks


 Also, moguls at Southington have been in their park. Thus the reason I haven't bought a Southington ticket in the name of supporting bump skiing.

FREE THE FREESTYLE!


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## Tin Woodsman (Oct 5, 2010)

As if on cue:



> New this year, Okemo is introducing a terrain park pass program that requires skiers and riders to know some basic rules of park safety and etiquette before accessing Okemo’s premier SuperPark on Nor’easter. There is no additional fee for the park pass. The goal of the park pass program is to educate freestyle skiers and riders about the courtesy and common sense of riding park elements and terrain features.
> 
> To obtain a park pass, skiers and riders can take a short online quiz at www.okemo.com or in person at Okemo Mountain Resort. Upon successful completion of the ten-question quiz, they will be issued a certificate to present for a laminated pass that they must wear, like a season pass, while riding Okemo’s terrain parks.
> 
> ...


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## gmcunni (Oct 5, 2010)

^^ dislike


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## Highway Star (Oct 5, 2010)

Tin Woodsman said:


> As if on cue:


 


> New this year, Okemo is introducing a terrain park pass program that requires skiers and riders to know some basic rules of park safety and etiquette before accessing Okemo’s premier SuperPark on Nor’easter. There is no additional fee for the park pass. The goal of the park pass program is to educate freestyle skiers and riders about the courtesy and common sense of riding park elements and terrain features.
> 
> To obtain a park pass, skiers and riders can take a short online quiz at www.okemo.com or in person at Okemo Mountain Resort. Upon successful completion of the ten-question quiz, they will be issued a certificate to present for a laminated pass that they must wear, like a season pass, while riding Okemo’s terrain parks.
> 
> ...


 
NICE.  I can hardly wait until Killington adapts something like this, which will make it's parks MUCH safer and more fun to ride.


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## mondeo (Oct 5, 2010)

gmcunni said:


> ^^ dislike


As long as it's free and lifetime, I don't really have an issue with it. Forced basic ettiquite knowledge helps everyone. It would be nice to have a national program, so, if I get past the wickets at Killington should they implement a system like that, it transfers to other mountains. Wouldn't be surprised if that eventually happens.


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## gmcunni (Oct 5, 2010)

mondeo said:


> As long as it's free and lifetime, I don't really have an issue with it. Forced basic ettiquite knowledge helps everyone. It would be nice to have a national program, so, if I get past the wickets at Killington should they implement a system like that, it transfers to other mountains. Wouldn't be surprised if that eventually happens.



what's next, turnstiles at the top of bump runs or glades?  Rejects from Blue Mountain Ski Patrol running around giving tickets to people who aren't good enough to ski a certain trail?

my prediction - helmets required at all ski resorts by start of  2012/13 season. ( i wear a helmet, but by choice) (and sometimes i don't wear a helmet, by choice, especially when the weather is nice)


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## mondeo (Oct 5, 2010)

Here's my nightmare scenario: some non-park skier is meandering down Dreamaker, I'm headed through the booter section. At some point after I'm on the takeoff face and can't see the landing, the meanderer meanders into the landing area. I land on him, we both get seriously mangled. Techincally, because he was the downhill skier, he sues me for all I'm worth and wins. I lose everything, physically and financially, because someone doesn't know that landing areas are "get the hell out" zones.


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## jaywbigred (Oct 5, 2010)

mister moose said:


> I agree that signs & labels can perform some function.  Signs cannot prevent all accidents, nor anticipate all hazzards.  I think it is misplaced to look to a sign, or lack thereof to place blame in an accident such as this.  Signs will multiply to an overload level if this solution is subscribed to.


 All I was arguing with my anecdote was that signs DO impact behavior, even of 15 year olds.

This point, however:



mister moose said:


> What I'm having trouble with is finding Sundown responsible for an injury on a feature that was knowingly and intentionally taken by a skier at a planned sufficient speed to go airborne.



Is 100% spot on. He intentionally took it, and inspected it from the lift. I have no idea where the expert/plaintiff's attorney are going with the sign thing. Do they mean to argue that he knew the jump was there, new how big it was, but somehow did not know jumping off it was dangerous? I mean, that would boil down to just being human, realizing that jumping off of high things in general can be dangerous...

My only thought is that they are arguing that the condition of the jump (icy, not well lit, etc...) at the time of his jump (perhaps in contrast to the time of his inspection from the lift) caused his jump not to go off as planned? I guess they would have to be focusing on a condition that was not readily apparent from the lift, or that changed after his inspection, but of which a sign could have and should have warned? I dunno, seems like a stretch to me!

How close does the lift pass to this jump?



legalskier said:


> Or how about there was some signage, but....
> 
> _Q: Mr Malaguit, you say that the trail wasn't marked as dangerous at the point you crossed over laterally from another trail midway down the mountain before you took that jump, correct?
> A: Yes, or else I wouldn't have tried it.
> ...


 That sounds about right to me.


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## mondeo (Oct 5, 2010)

jaywbigred said:


> How close does the lift pass to this jump?


Depends on the lift taken. One lift has its own line from top to bottom, you could argue that you can't judge any conditions from it. Other passes over main part of the park and the section where the three trails merge is within full view, although if the jump was along the treeline on Exhibition it would be difficult to gauge conditions from the lift. But bad conditions don't result in paralysis - that tells me it was a partial backflip, so it was either an inexperienced skier or a funky jump that puts you way in the backseat during takeoff. At least over the last couple years, Sundown's jumps have been spot on (in the park at least, they've been learning on the mogul kicker side of things.)


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## bvibert (Oct 5, 2010)

jaywbigred said:


> How close does the lift pass to this jump?





mondeo said:


> Depends on the lift taken. One lift has its own line from top to bottom, you could argue that you can't judge any conditions from it. Other passes over main part of the park and the section where the three trails merge is within full view, although if the jump was along the treeline on Exhibition it would be difficult to gauge conditions from the lift. But bad conditions don't result in paralysis - that tells me it was a partial backflip, so it was either an inexperienced skier or a funky jump that puts you way in the backseat during takeoff. At least over the last couple years, Sundown's jumps have been spot on (in the park at least, they've been learning on the mogul kicker side of things.)



I figure that he had to have seen it from lift 1, which goes directly over the lower part of the park (the section of trail that he cut over to).  You can't see much of anything from lift 2 except for a small section of the trail above where he could have possibly cut over to, without walking uphill.


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## dmc (Oct 5, 2010)

I think if you work there - you should probably not comment on the case..  

You may just find yourself in court.  which would suck..


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## bvibert (Oct 5, 2010)

dmc said:


> I think if you work there - you should probably not comment on the case..
> 
> You may just find yourself in court.  which would suck..



I thought of that, but I know nothing about the actual case.  Just speculation on my part, with no more knowledge than any typical Sundown regular.

Maybe I'll just stay out of it though.  I'd hate to find myself in court, or somehow damage Sundown's case.


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## JimG. (Oct 5, 2010)

mondeo said:


> As long as it's free and lifetime, I don't really have an issue with it. Forced basic ettiquite knowledge helps everyone. It would be nice to have a national program, so, if I get past the wickets at Killington should they implement a system like that, it transfers to other mountains. Wouldn't be surprised if that eventually happens.



Forced basic ettiquette program?

Good luck; don't get me wrong, I agree with your premise, but experience tells me that anything forced only leads to exponentially worse behaviour.

How pathetic is it that we now live in a society where basic good manners have to be forced upon people?
Soon we will need a "breathe every 2 seconds" program an then a "wipe your ass after pooping" program too.

Ever see the movie "Idiocracy" by the Coen brothers? That's our future.


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## mondeo (Oct 5, 2010)

JimG. said:


> Forced basic ettiquette program?
> 
> Good luck; don't get me wrong, I agree with your premise, but experience tells me that anything forced only leads to exponentially worse behaviour.
> 
> ...


Park etiquitte isn't always obvious; more of a once you think about it, it makes sense kind of thing. People that don't hit jumps are just used to skiing wherever, and the uphill skiers are responsible for not hitting them. They don't always realize that that just doesn't work in a park. Same type of thing happens on a bump run, people don't realize what they do to people that ski the line. It's hard to understand the consequences of your actions until you're on the other side. Some education isn't necessarily a bad thing.


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## legalskier (Oct 5, 2010)

Here are excerpts from today's account:

_*WEB FIRST: An expert doctor testifies about equipment Malaguit will need*
Published: Tuesday, October 05, 2010
LITCHFIELD — An expert doctor testified that James *Malaguit’s house is inadequate to support him* because of the injuries he sustained in a ski accident at Ski Sundown in 2006.*** Jeffrey Perry, a doctor with Comprehensive Rehabilitation Consultants of Manhattan, testified about the changes in life Malaguit must endure in order to continue on with school and life in general. *** When looking at the house that Malaguit lives in, Perry recommended numerous modifications that be done in order to comply with the severity of Malaguit’s injury. *“It’s not really suitable for a quadriplegic,”* Perry testified. “You want handicapped access.” While testifying, Perry even *recommended that the Malaguit’s move to a different house* in order to completely accommodate for Malaguit and his disability. *** “As James ages, his family is no longer going to be able to give care to him as he requires *nursing care 24 hours a day*,” Perry testified._
Full article: http://www.registercitizen.com/articles/2010/10/05/news/doc4cabb24d181b0749956837.txt

ka-ching, ka-ching


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## gmcunni (Oct 6, 2010)

^^ that link didn't work for me, this one did.
http://www.registercitizen.com/articles/2010/10/06/news/doc4cabb24d181b0749956837.txt


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## JimG. (Oct 6, 2010)

mondeo said:


> Park etiquitte isn't always obvious; more of a once you think about it, it makes sense kind of thing. People that don't hit jumps are just used to skiing wherever, and the uphill skiers are responsible for not hitting them. They don't always realize that that just doesn't work in a park. Same type of thing happens on a bump run, people don't realize what they do to people that ski the line. It's hard to understand the consequences of your actions until you're on the other side. Some education isn't necessarily a bad thing.



Again, I'm not disagreeing with your premise. Especially true in the terrain park I also agree.

I guess all I'm saying is that all it takes is one asshole and there always seems to be one around when you least need one. And that person either doesn't get the safety/ettiquette program, doesn't care, is too stupid to care, too drunk to care, or whatever.

I'm not sure there is a system to prevent these types of incidents.


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## thetrailboss (Oct 6, 2010)

Any verdict yet?


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## legalskier (Oct 7, 2010)

thetrailboss said:


> Any verdict yet?



It'll be a while.

Here's the latest:
_Attorney for Ski Sundown interviews witnesses in court_
_***“There is a great variety of terrain for people to choose from,” [ski patroller] Stumbras  said. “There is always the option for a skier to take a feature or to not take a feature.”***_
Full story: http://www.registercitizen.com/articles/2010/10/07/news/doc4cad5639db89e665053186.txt


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## gmcunni (Oct 7, 2010)

legalskier said:


> It'll be a while.
> 
> Here's the latest:
> _Attorney for Ski Sundown interviews witnesses in court_
> ...



article references Ski Sundown's YouTube channel.. anybody have a URL for it?  i find tons of ski sundown videos on YT but can't seem to find their official channel.  The link on their website looks to be just a general search on YT.


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## skidmarks (Oct 7, 2010)

legalskier said:


> It'll be a while.
> 
> Here's the latest:
> _Attorney for Ski Sundown interviews witnesses in court_
> ...





The Register Citizen might not have their facts straight

"Ski Sundown owner Channing Murdock testified toward the end of the day, Wednesday."


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## bvibert (Oct 7, 2010)

skidmarks said:


> The Register Citizen might not have their facts straight
> 
> "Ski Sundown owner Channing Murdock testified toward the end of the day, Wednesday."



I saw that too.  Murdock was the one who revived the place in the late 60's, but I thought he sold it to Carter (who had been running it for him) in the 70's.  Maybe Murdock still has some stake in it though?


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## Highway Star (Oct 7, 2010)

Serious question - does anyone have a picture of this jump or video?


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## SkiDork (Oct 7, 2010)

Highway Star said:


> Serious question - does anyone have a picture of this jump or video?




I think I do from 09 S7.  Give me a few mins to put it up online.


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## Grassi21 (Oct 7, 2010)

Highway Star said:


> Serious question - does anyone have a picture of this jump or video?



LOL.  Not busting on you, but I find it humorous that you need to preface your questions with "serious question."


----------



## SkiDork (Oct 7, 2010)

Pardon the crappy video.  This was when Iceman had entered the slopestyle portion of S7.  I think its the 2nd one (which seemed to be the biggest on there)

http://www.sportsnetamerica.tv/node/109826


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## mondeo (Oct 7, 2010)

SkiDork said:


> I think I do from 09 S7. Give me a few mins to put it up online.


That wouldn't be the jump in question, I don't think. That's on Stinger, what I've read says Exhibition, where they have the learning bumps now.


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## SkiDork (Oct 7, 2010)

mondeo said:


> That wouldn't be the jump in question, I don't think. That's on Stinger, what I've read says Exhibition, where they have the learning bumps now.




oh,  oops.  OK ignore my video...  Sorry.


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## severine (Oct 7, 2010)

Highway Star said:


> Serious question - does anyone have a picture of this jump or video?


This is from Feb 2008, but that's 2 years after the incident in question:













mondeo said:


> That wouldn't be the jump in question, I don't think. That's on Stinger, what I've read says Exhibition, where they have the learning bumps now.


I don't think so... he said he cut across 3 trails to get to the jump. That would mean crossing over to where Stinger meets Exhibition. I don't believe they've ever had a jump on the beginner side of Ex.


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## gmcunni (Oct 7, 2010)

mondeo said:


> That wouldn't be the jump in question, I don't think. That's on Stinger, what I've read says Exhibition, where they have the learning bumps now.



i read he cross over trails to get to the jump so i believe he skied exhibiton but cut over  to catch the big jump at the bottom of stinger.  this assumes a similar layout in 2006 as i've seen the past few years but i have no memory of 2006 season (i don't think i even skied there in 2006)


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## SkiDork (Oct 7, 2010)

so it the video I put up correct then?


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## severine (Oct 7, 2010)

SkiDork said:


> so it the video I put up correct then?



That's the same area my photos are from. It makes sense. I didn't ski there in 2006--that winter I only managed 1 day with a 6-month old--but I know in 2004 there was not a jump on the beginner side of Ex, nor have I ever seen one since.


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## bvibert (Oct 7, 2010)

mondeo said:


> That wouldn't be the jump in question, I don't think. That's on Stinger, what I've read says Exhibition, where they have the learning bumps now.





severine said:


> I don't think so... he said he cut across 3 trails to get to the jump. That would mean crossing over to where Stinger meets Exhibition. I don't believe they've ever had a jump on the beginner side of Ex.





gmcunni said:


> i read he cross over trails to get to the jump so i believe he skied exhibiton but cut over  to catch the big jump at the bottom of stinger.  this assumes a similar layout in 2006 as i've seen the past few years but i have no memory of 2006 season (i don't think i even skied there in 2006)



I believe they are correct Mondeo.  Exhibition covers the whole width of the bottom, including below Stinger.  To me it sounded like he came down one of the intermediate trails and then traversed over Exhibition to the bottom of Stinger to hit the jump that he had seen from the lift on previous rides.

It's hard to say exactly what type of jump they had setup then.  It most certainly was not exactly the same as 2008 or 2010.


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## gmcunni (Oct 7, 2010)

bvibert said:


> It's hard to say exactly what type of jump they had setup then.  It most certainly was not exactly the same as 2008 or 2010.



it changes during the season, let alone from year to year.  the gap jump style from the comp wasn't there this year at the end of the season when i finally go up nerve to hit it (doubt i'd have tried the gap jump at all!)


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## bvibert (Oct 7, 2010)

gmcunni said:


> it changes during the season, let alone from year to year.  the gap jump style from the comp wasn't there this year at the end of the season when in finally go up nerve to hit it (doubt i'd have tried the gap jump at all!)



Exactly.  Without pictures from that day in 2006 it's hard to say what the jump that he hit looked like.


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## gmcunni (Oct 7, 2010)

bvibert said:


> Exactly.  Without pictures from that day in 2006 it's hard to say what the jump that he hit looked like.



maybe we could rely on expert testemony


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## mondeo (Oct 7, 2010)

gmcunni said:


> maybe we could rely on expert testemony


It looked safe from the chair, but dangerous when upside down in the air over it.


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## SkiDork (Oct 7, 2010)

gmcunni said:


> it changes during the season, let alone from year to year.  the gap jump style from the comp wasn't there this year at the end of the season when i finally go up nerve to hit it (doubt i'd have tried the gap jump at all!)




That was Icemans' first gap jump.  When he first saw them he was saying to me "theres now way I can do that"  I told him it was OK if he wanted to skip it.  But he took it upon himself to work up the courage to do it.  Since then he does them all the time.


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## gmcunni (Oct 7, 2010)

http://www.registercitizen.com/articles/2010/10/07/news/doc4cae4b813418e892283775.txt

Latest.


----------



## gmcunni (Oct 7, 2010)

skidmarks said:


> The Register Citizen might not have their facts straight
> 
> "Ski Sundown owner Channing Murdock testified toward the end of the day, Wednesday."





bvibert said:


> I saw that too.  Murdock was the one who revived the place in the late 60's, but I thought he sold it to Carter (who had been running it for him) in the 70's.  Maybe Murdock still has some stake in it though?



CORRECTION: An earlier version of this story incorrectly named Channing Murdock as the owner of Ski Sundown and quoted him as testifying in this case, when it was actually Bob Switzgable, Ski Sundown president.


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## bvibert (Oct 7, 2010)

gmcunni said:


> CORRECTION: An earlier version of this story incorrectly named Channing Murdock as the owner of Ski Sundown and quoted him as testifying in this case, when it was actually Bob Switzgable, Ski Sundown president.



Well, that certainly makes more sense.  Not sure where they pulled Murdock's name out of??


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## legalskier (Oct 8, 2010)

_*Ski Sundown owner focuses testimony on terrain park features*
Published: Friday, October 08, 2010
LITCHFIELD — The owner of Ski Sundown testified in Litchfield Superior Court Thursday about the changes that a ski area, specifically the terrain park, undergoes every year and that *terrain park lesson groups focusing on safety and responsibility were available* at the time of James Malaguit’s ski incident. *** “After grooming a (terrain park) feature, it is tested by the ski area before people are allowed on.” *** “A lot of those safety messages that are on the hill are *common sense*,” Switzgable stated. *** “That year, we had the table top responsibility code inside the welcome center,” _
http://registercitizen.com/articles/2010/10/08/news/doc4cae9c661ac5d784554862.txt


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## 2knees (Oct 8, 2010)

does anyone have any information on similar cases like this and their outcomes?  If they are held liable will that significantly impact the way sundown builds its parks going forward?  For a small ski area, they have some of the most varied features i've seen.


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## mondeo (Oct 8, 2010)

2knees said:


> does anyone have any information on similar cases like this and their outcomes? If they are held liable will that significantly impact the way sundown builds its parks going forward? For a small ski area, they have some of the most varied features i've seen.


I'd hope it would just go to a maze at top/need to pass test to get in, if at all. Their current set-up method, with fencing, pretty much forces you to take the entire Stinger trail unless you decide to circumvent their attempts to keep you out. Bastards have me hiking up across Stinger from the bottom of Temptor all season. And I'm pretty sure there's a smart style sign at the top of Stinger.

Again, I'm sortof in favor of the testing. It would reduce the number of parents with 5 year olds ignoring the line of people waiting for the booter and just going over it, with the people waiting having no confidence in the 5 year olds ability to ski down the blind jump landing given that it's the steepest part of the trail. And hopefully it's a lifetime pass.


----------



## gmcunni (Oct 8, 2010)

2knees said:


> does anyone have any information on similar cases like this and their outcomes?



i did the free search thing on Lexis and found a few cases against Sundown. They all appeared (to my ignorant legal eye) to go in favor of the mountain.  Not sure how similar to the current case these are, legally speaking, but 1 did involve a kid going over a jump, sadly & tragically  resulting in his death.




> 1. Kearns v. Ski Sundown, Inc., CV095027037S, SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF HARTFORD AT HARTFORD, October 7, 2009, Decided, October 7, 2009, Filed
> 
> OVERVIEW: Skier's motion to strike ski area operator's special defense was denied in skier's injury claim arising from a skiing collision because Conn. Gen. Stat. § 29-212(b)(6) protected ski area operators from liability where a plaintiff collided with any other skier so long as that skier was not an on-duty employee of the ski area operator.






> 3. MacDonald v. Ski Sundown, Inc., X07CV020083292S , SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF TOLLAND, COMPLEX LITIGATION DOCKET AT TOLLAND, March 31, 2005, Decided , March 31, 2005, Filed
> 
> OVERVIEW: Ski resort was entitled to summary judgment in father's negligence case as he failed to disclose expert witnesses that were required to prove his negligence case. Expert was needed to establish whether snow ramp, upon which decedent was killed, was trail or slope under Conn. Gen. Stat. § 29-211(3) that required degree of difficulty markings


.




> 6. O'Brien v. Ski Sundown, CV000083444S , SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD, AT LITCHFIELD, February 7, 2003, Decided , February 7, 2003, Filed
> 
> OVERVIEW: The factual question of whether the ski lift was safe was not a matter within the ken of the ordinary juror. Expert testimony was also required to establish whether the ski lift operator had been negligent. Thus, there was no basis for liability.





> 10. Civitello v. Ski Sundown, CV 970137455S, SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF WATERBURY, AT WATERBURY, June 8, 2000, Decided , June 9, 2000, Filed
> 
> OVERVIEW: Plaintiff, an injured skiier, was required to provide expert testimony at time of trial to substantiate claim of negligent instruction. In absence of such testimony, defendants' motion for summary judgment would be granted.


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## 2knees (Oct 8, 2010)

gmcunni said:


> i did the free search thing on Lexis and found a few cases against Sundown. They all appeared (to my ignorant legal eye) to go in favor of the mountain.  Not sure how similar to the current case these are, legally speaking, but 1 did involve a kid going over a jump, sadly & tragically  resulting in his death.
> .



that last one raises an eyebrow.  Negligent instruction?


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## gmcunni (Oct 8, 2010)

2knees said:


> that last one raises an eyebrow.  Negligent instruction?



i read more... she fell while taking a lesson and attempted to grab a pole setup for students to turn around.  she broke her wrist in the fall and claimed she wasn't properly instructed on how to fall. :roll:


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## 2knees (Oct 8, 2010)

gmcunni said:


> i read more... she fell while taking a lesson and attempted to grab a pole setup for students to turn around.  she broke her wrist in the fall and claimed she wasn't properly instructed on how to fall. :roll:




i figured it would be stupid, but that's off the charts.


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## legalskier (Oct 9, 2010)

_*Victim's mother says bill for Ski Sundown accident was $719,726.44*_
Link: http://www.registercitizen.com/articles/2010/10/09/news/doc4caf961de1a19380292659.txt


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## o3jeff (Oct 9, 2010)

legalskier said:


> _*Victim's mother says bill for Ski Sundown accident was $719,726.44*_
> Link: http://www.registercitizen.com/articles/2010/10/09/news/doc4caf961de1a19380292659.txt



Lots of comments under the article .


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## gmcunni (Oct 9, 2010)

the more i think about this situation the more mixed my feelings become.  

i know first hand the difficult life this kid and his family have ahead of them.  I have 16 YO son, the thought of MY son going through a life like that might very well be enough for me to swallow my pride and pursue every possible option of securing him the best possible future. i'm sure many people won't agree with that but i think I *could* feel that way in their situation.

i don't think Sundown is at fault. I've only read the reports in the newspaper so my facts are not likely complete but if a skier can cross from a blue to black trail without the same warning signs  present that are at the top of the black trail could there be an issue?  i know there has been a soft fence deterring the cutover recently, don't know if it was there in 2006. 

But bottom line, the kid saw the jump and made a conscious effort to hit it. he certainly could have aborted at the last seconds of his approach if he was unsure but he chose not to.  He put himself in the situation, he wasn't forced or coerced into it.


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## bvibert (Oct 9, 2010)

gmcunni said:


> the more i think about this situation the more mixed my feelings become.
> 
> i know first hand the difficult life this kid and his family have ahead of them.  I have 16 YO son, the thought of MY son going through a life like that might very well be enough for me to swallow my pride and pursue every possible option of securing him the best possible future. i'm sure many people won't agree with that but i think I *could* feel that way in their situation.



It'd be hard for anyone to say that they wouldn't try to do the same if they were in a similar situation.  That doesn't make it right though.  That's why I blame the system for allowing it to happen...


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## mondeo (Oct 9, 2010)

bvibert said:


> It'd be hard for anyone to say that they wouldn't try to do the same if they were in a similar situation. That doesn't make it right though. That's why I blame the system for allowing it to happen...


Undercard over, time for the main event!


----------



## mister moose (Oct 11, 2010)

So I'm reading over the last few pages on this thread, and in the middle of it up pops an ad for the movie "Jackass 3D"  

http://www.youtube.com/watch?v=fKwjU_pSSW4







I can't count the ways this is ironic.

In the middle of a thread on injury and personal responsibility is an ad depicting promotion of stupid behavior that is promoted as funny.  Attempting to replicate any of these stunts certainly risks injury.

If someone gets hurt from this, who's to blame?  Is it the movie?  The actors?  The equipment manufacturers?  The ad distributor? What about Alpine Zone?  

Or maybe, is it the parents and the kids themselves?

I mean, I grew up with cartoons of Wile E Coyote trying to strap himself to an Acme rocket, but you can be sure I never tried it.


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## JimG. (Oct 11, 2010)

mister moose said:


> So I'm reading over the last few pages on this thread, and in the middle of it up pops an ad for the movie "Jackass 3D"
> 
> http://www.youtube.com/watch?v=fKwjU_pSSW4
> 
> ...



It is amazing.

I was going to mention this new quirk of our society where we glorify idiotic and clearly injurious behaviour.

But I also have to admit that it's funny as sh*t to watch.


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## 2knees (Oct 11, 2010)

a classic.


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## HowieT2 (Oct 11, 2010)

bvibert said:


> It'd be hard for anyone to say that they wouldn't try to do the same if they were in a similar situation.  That doesn't make it right though.  That's why I blame the system for allowing it to happen...



BTW- just so you understand, it was previously reported that the bills to date are about 750k.  Even if there is health insurance to cover these costs, that likely has a 1 or 5 million max.  Given his age and the rate of inflation of medical costs, the projected medical costs are probably in the neighborhood of 50 million.  At some point , this cost will likely be borne my medicare and medicaide, if it isnt already.  if there is any recovery in this lawsuit medicare/medicaide will be reimbursed any past costs and indemnified for costs in the future.


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## marcski (Oct 11, 2010)

HowieT2 said:


> BTW- just so you understand, it was previously reported that the bills to date are about 750k.  Even if there is health insurance to cover these costs, that likely has a 1 or 5 million max.  Given his age and the rate of inflation of medical costs, the projected medical costs are probably in the neighborhood of 50 million.  At some point , this cost will likely be borne my medicare and medicaide, if it isnt already.  if there is any recovery in this lawsuit medicare/medicaide will be reimbursed any past costs and indemnified for costs in the future.



Special needs trust.


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## legalskier (Oct 13, 2010)

ESPN commentary:

_*Resort liability laws: out of date?*
By Matt Higgins, ESPN Action Sports
*** Although 27 states have ski safety statutes; skiers and snowboarders typically sign liability waivers; and the back of a lift pass features fine print releasing resorts from responsibility for the sports' inherent risks, legal challenges continue, raising the question as another winter season looms: who's ultimately liable for accidents or injury? With the rising popularity of terrain parks, the issue has become potentially even more muddled. ***_
Full article: http://sports.espn.go.com/action/snowboarding/news/story?id=5677080


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## 4aprice (Oct 13, 2010)

legalskier said:


> ESPN commentary:
> 
> _*Resort liability laws: out of date?*
> By Matt Higgins, ESPN Action Sports
> ...



Camelback has for a while now restricted the entrance to its terrian park.  While they sort of use it as a revenue stream ($5 if not a pass holder) all they make you do is make you watch a film and sign some sort of a release.  It makes you wonder if they need to due more as in testing your ability before letting you go in.  Its unfortunate, but I've also marveled at the size of some of these jumps and the amount of air that can be attained and wondered how the insurance company allowed it.  Being a mogul fan I've wondered the same thing about mogul runs.  My son is a quasi Park Rat but he seems to have a cautious streak in him and I don't really worry about him.  I'm not a park person but I get the pass to ski the last stashes on powder days.  

Alex

Lake Hopatcong, NJ


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## gmcunni (Oct 13, 2010)

4aprice said:


> C It makes you wonder if they need to due more as in testing your ability before letting you go in.



this is the part i don't get.. where is personal accountability.. or parental accountability?  negligence aside, if you give people a warning why do you have to give them an extra warning, or a different warning, or more warnings....

if a 10 YO kid doesn't have the presence of mind to make a good decision is it the mountain's responsibility or the parent's?


again, if there is a pitch fork buried in the snow and you get hurt as a result then screw the mountain, they F'd up.  but skiing on a well marked trail with an obvious ramp/trick/bump/feature/flag/rope/whatever shouldn't mean the mgt of the mountain needs to babysit every skier/rider who goes by it.


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## neil (Oct 13, 2010)

gmcunni said:


> again, if there is a pitch fork buried in the snow and you get hurt as a result then screw the mountain, they F'd up.  but skiing on a well marked trail with an obvious ramp/trick/bump/feature/flag/rope/whatever shouldn't mean the mgt of the mountain needs to babysit every skier/rider who goes by it.



Couldn't agree more. Unfortunately it seems to be people's nature today that everything is a "rollercoaster" type ride. Scary, but ultimately in control of someone else. When you start applying that logic to things like snowsports, hiking, white water rafting etc then you start seeing these types of accidents and lawsuits.


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## mondeo (Oct 13, 2010)

You need a driver's liscence to drive on a public road, most race tracks would have a similar requirement. Pretty much need to be certified to skydive. This type of thing isn't unheard of.

I think there's a difference between requiring some sort of knowledge to do something and just a pure restriction, especially when others' safety is on the line. I'm all for letting someone do whatever they want as long as they don't hurt me, but parks can be crowded and doing something stupid can result in someone doing all the right things being hurt. And if it ends up reducing insurance costs, all the better.


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## 4aprice (Oct 13, 2010)

gmcunni said:


> this is the part i don't get.. where is personal accountability.. or parental accountability?  negligence aside, if you give people a warning why do you have to give them an extra warning, or a different warning, or more warnings....
> 
> if a 10 YO kid doesn't have the presence of mind to make a good decision is it the mountain's responsibility or the parent's?
> 
> ...



I agree.  Unfortunately it's not that way in today's society.  I was thinking of ways that the ski areas could insulate themselves from lawsuits with the more testing comment, but I don't think its possible.  Can you imagine people having to be tested to access certain terrain?  We had an incident here in NJ last winter where a sledding hill in a county park had to be closed because a sledder collided with (drum roll) a bale of hay placed there (drum roll again) to prevent sledders from hurting themselves.  

Alex

Lake Hopatcong, NJ


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## x10003q (Oct 13, 2010)

4aprice said:


> I agree.  Can you imagine people having to be tested to access certain terrain?  .
> 
> Alex
> 
> Lake Hopatcong, NJ



During the 1970s,  town bus trips I took to Hunter dropped us off at Hunter One.We had to make some turns and get graded in order to have our pass stamped to have access to the rest of Hunter. I do not remember if it was the ski patrol or the ski school who gave the 'test'. They also gave us a card if we passed so we would not have to test the next time we were at Hunter. Those of us who could ski loved Hunter keeping the crazy never evers off the main trails at Hunter.


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## skidmarks (Oct 13, 2010)

Just to keep it real! 
This gate has NO warning signs leading up to it.  If it wasn't for the fact that it was Fu#*ing painted yellow and blocking my path I may have crashed into it and sued for 2.9 million clams like Blonski's Lawyer did.

Do we as a society realy need to protect people from the obvious?


----------



## jaywbigred (Oct 14, 2010)

x10003q said:


> During the 1970s,  town bus trips I took to Hunter dropped us off at Hunter One.We had to make some turns and get graded in order to have our pass stamped to have access to the rest of Hunter. I do not remember if it was the ski patrol or the ski school who gave the 'test'. They also gave us a card if we passed so we would not have to test the next time we were at Hunter. Those of us who could ski loved Hunter keeping the crazy never evers off the main trails at Hunter.



They used to do this at Vernon Valley when I was in HS for our Ski Club trips.

I am going to think out loud here for a second, and I know that I may catch hell for it, but bear with me...going back a few years, most of us can recall a time when most resorts either greatly restricted or outright banned jumps, jumping, and jump building. I assume this was as a precautionary measure, because jumping is more dangerous than just skiing, and more likely to cause injuries, and injuries lead to law suits. At some point, a confluence of sources (snowboarding, halfpipes, ski videos/movies, mogul's being included in the Winter Olympics and Jonny Moseley's pseudo-inverted trick) combined to create greater demand for jumps, pipes, and, eventually, boxes, jobs and rails. 

When you have demand for something like that, certain resorts saw it as an opportunity to make money, increase skier traffic, and sell more tickets. I am not sure who was the first, but I know Mt. Snow was early in the game (1992) with Un Blanco Gulch. In any event, at the same time, many resorts continued to resist. For some, the risk (injuries and lawsuits) was not worth the reward (increased traffic and revenue). 

Fast forward to today, when virtually every resort offers some sort of terrain park. What happened? I can't say for sure, but I have to assume that the standardization of terrain parks and their acceptance by the industry made the risk worth it. Insurance policies must have evolved, and it likely became a business necessity to add some sort of park in order to keep pace with competitors.

So, I guess what I am saying is, ski resorts are in the business of inviting people onto their property to make money. They build terrain parks, with jumps and rails and other features, the sizes of which are ever-increasing, in order to make more money. They do so with the full understanding that doing so will undoubtedly lead to more injuries and therefore lawsuits, and the lawsuits will run the gamut from frivolous to borderline to valid. So, to a certain extent, I have trouble feeling sorry for the resorts. If you build it, they will come.

None of this exculpates skiers from the basic charge that all humans should use common sense in everything they do. And it doesn't change my opinion about the case that gave rise to this thread. I am just saying that ski resorts knew what they were getting into and chose to do it anyway, in the never-ending quest to make money.


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## legalskier (Oct 14, 2010)

Now it's Sundown's opportunity to present its case:

_*Defense shows ski video in Ski Sundown paralysis trial* 
Lawyers use video to show how harmless ski jump can be 
LITCHFIELD -- Jurors in Litchfield Superior Court on Wednesday watched a video of children skiing over the same jump that left James Malaguit, 20, paralyzed after a 2006 accident.
On the first day the lawyers for Ski Sundown in New Hartford have been able to present evidence in their defense, they used the video to show how harmless the jump can be. The video was filmed on Feb. 18, 2006, the day after Malaguit, then 15, flew over the jump in the dark and landed on his head. It showed children, all younger than 12 and participating in the Little Big Air competition, slowly ski and snowboard over the jump in front of cheering parents.
Malaguit is suing the ski resort for unspecified monetary damages claiming that the jump was "unreasonably dangerous, creating an obstacle course, and was inadequately lit and had no warning signs." The defense will continue to present evidence throughout the week_.
http://www.rep-am.com/articles/2010/10/14/news/local/doc4cb6eef3e8e34458192232.txt


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## gmcunni (Oct 14, 2010)

legalskier said:


> The video was filmed on Feb. 18, 2006, the day after Malaguit, then 15, flew over the jump in the dark and landed on his head. It showed children, all younger than 12 and participating in the Little Big Air competition, slowly ski and snowboard over the jump in front of cheering parents



if anyone finds this video online please share, i'd be interested to see what the jump looked like in 2006 compared to last year.


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## Grassi21 (Oct 14, 2010)

skidmarks said:


> Just to keep it real!
> This gate has NO warning signs leading up to it.  If it wasn't for the fact that it was Fu#*ing painted yellow and blocking my path I may have crashed into it and sued for 2.9 million clams like Blonski's Lawyer did.
> 
> Do we as a society realy need to protect people from the obvious?



Wow!  That is the gate she hit?  How can you not see that?  There is ample room on either side to bypass the gate in case of emergency.


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## mondeo (Oct 14, 2010)

Grassi21 said:


> Wow! That is the gate she hit? How can you not see that? There is ample room on either side to bypass the gate in case of emergency.


That isn't THE gate, but it's damn close in set up.


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## gmcunni (Oct 14, 2010)

Sundown's expert  - “The element of choice is at work here,” Shealy testified.

The terrain feature that Malaguit was injured on was a very small feature, according to Shealy. Generally, the smaller the feature, the slower the jumper goes, Shealy noted.




http://www.registercitizen.com/articles/2010/10/14/news/doc4cb649a6424c4694350799.txt


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## severine (Oct 14, 2010)

mondeo said:


> That isn't THE gate, but it's damn close in set up.



Isn't this the one?


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## o3jeff (Oct 14, 2010)

[/IMG]
Courtesy of the BSS


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## severine (Oct 14, 2010)

Yup, same gate.


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## 4aprice (Oct 14, 2010)

jaywbigred said:


> They used to do this at Vernon Valley when I was in HS for our Ski Club trips.
> 
> I am going to think out loud here for a second, and I know that I may catch hell for it, but bear with me...going back a few years, most of us can recall a time when most resorts either greatly restricted or outright banned jumps, jumping, and jump building. I assume this was as a precautionary measure, because jumping is more dangerous than just skiing, and more likely to cause injuries, and injuries lead to law suits. At some point, a confluence of sources (snowboarding, halfpipes, ski videos/movies, mogul's being included in the Winter Olympics and Jonny Moseley's pseudo-inverted trick) combined to create greater demand for jumps, pipes, and, eventually, boxes, jobs and rails.
> 
> ...



Jay:

Could you see this affecting our beloved mogul skiing as well? (not this particular case but other law suits against the industry)  I've always worried about this.  I would hate to see the ski areas (particularly the smaller hills down here) forced to roll everything flat but I could see it happening if the wrong decision came down.  Like I said I sit there and look at some of the features in the terrain parks and wonder how thier insurance companies allow it.  Liability Laws are tricky things.

Alex

Lake Hopatcong, NJ


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## gmcunni (Oct 15, 2010)

looks like it is wrapping up.


> Petrozzi was the last witness for the defense, concluding their presentation for the jury. A charge conference will be held tomorrow, a matter that the jury is not involved in. *The jury will be present Tuesday morning for closing arguments*, hear the law on the case, and be asked to render a decision


.


http://www.registercitizen.com/articles/2010/10/15/news/doc4cb7d56aaffeb324690574.txt


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## tjf67 (Oct 15, 2010)

4aprice said:


> Jay:
> 
> Could you see this affecting our beloved mogul skiing as well? (not this particular case but other law suits against the industry)  I've always worried about this.  I would hate to see the ski areas (particularly the smaller hills down here) forced to roll everything flat but I could see it happening if the wrong decision came down.  Like I said I sit there and look at some of the features in the terrain parks and wonder how thier insurance companies allow it.  Liability Laws are tricky things.
> 
> ...



I think it would absolutely change there stance on how the parks are set up if a negative ruling comes down, probably not just at Sundown.  They will appeal and I would think they would win but in the mean time depending on how much input the companies attorneys have on the owners their certainly is a high likely hood of changes.


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## legalskier (Oct 15, 2010)

gmcunni said:


> looks like it is wrapping up.
> .http://www.registercitizen.com/articles/2010/10/15/news/doc4cb7d56aaffeb324690574.txt



He also testified to this:

_“*Ski Sundown was consistent in all aspects (of ski industry terrain park safety standards*), with the design of the feature, the location of the feature, the ability to be seen from above,” Petrozzi testified.
The feature was in an *obvious location*. The* construction* of the feature and the *maintenance* of the feature were consistent with ski industry terrain park safety standards.
“The dimensions of the feature, the height, the location; not only were they consistent with what the industry did, but on the leading edge,” Petrozzi stated.
Petrozzi went on to testify that there is not an industry standard for terrain park fencing or barriers.
“A fence is necessary when the feature or the park is not visible, open and obvious, where it would be a surprise to someone,” Petrozzi testified.
The other reason a fence would be necessary around a terrain park would be because of excessive cross traffic. A fence was not necessary during the time of Malaguit’s incident for two reasons, according to Petrozzi.
“*The feature was open and obvious, it was never going to be a surprise.* There was somewhere around 100 people or so that were skiing on the night of James’ accident ... *the potential for confliction with cross traffic was basically absent*, so (terrain park fences or barriers) was not necessary on the evening of James’ accident,” Petrozzi testified.
James said he knew that the terrain feature was there and that he was going to take that feature on that evening, Petrozzi noted in his testimony.
“There is no surprise,” Petrozzi testified. *“James knew it (terrain feature) was there, he made a conscious decision to traverse across the trail to get to the feature.*”_

This undermines the plaintiff's expert's testimony that Sundown failed to warn skiers of the risk; i.e. no warning is needed where the risk is obvious.


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## legalskier (Oct 18, 2010)

_*Ski Sundown's legal counsel, plaintiff discuss injury case*
LITCHFIELD — Attorneys representing Ski Sundown and James Malaguit discussed specific terminology within the juror instructions as well as the chronological order of the instructions that will be given to the jury as a basis for their deliberation in a charge hearing in Litchfield Superior Court Friday. ***
The defense wants *Conn. General Statute 29-212* to be present in front of the jury while they deliberate. Conn. General Statute 29-212 states, “Skiing” means sliding downhill or jumping on snow or ice using skis, a snowboard, snow blades, a snowbike, a sit-ski or any other device that is controllable by its edges on snow or ice or is for the purpose of utilizing any skiable terrain,” according to Conn. Public Act No. 05-78.
“What the jury doesn’t see is that *jumping is a part of skiing under the definition. If that is not put in front of jury, the jury may see skiing and jumping as two different things,”* defense attorney Charles F. Gfeller of West Hartford stated._
http://www.registercitizen.com/articles/2010/10/16/news/doc4cb8d791cd407268913236.txt


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## Highway Star (Oct 18, 2010)

4aprice said:


> Jay:
> 
> Could you see this affecting our beloved mogul skiing as well? (not this particular case but other law suits against the industry) I've always worried about this. I would hate to see the ski areas (particularly the smaller hills down here) forced to roll everything flat but I could see it happening if the wrong decision came down. Like I said I sit there and look at some of the features in the terrain parks and wonder how thier insurance companies allow it. Liability Laws are tricky things.
> 
> ...


 
Funny stuff.  You do realize that moguls have got MUCH smaller and easier at most areas all throughout the 1990's, to where they are usually pretty small now.  Whereas in the 90's, jumps went from being banned to being built in parks everywhere.


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## Highway Star (Oct 18, 2010)

jaywbigred said:


> They build terrain parks, with jumps and rails and other features, *the sizes of which are ever-increasing*, in order to make more money.


 
BS.  Maybe the sizes of the rails and various jibs are a bit bigger, but jumps have definitely gotten gradually smaller since the 90's.  Tell me where in the east has a 45-60 foot table top with a 30-35+ degree jump......?


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## mondeo (Oct 18, 2010)

Highway Star said:


> Funny stuff. You do realize that moguls have got MUCH smaller and easier at most areas all throughout the 1990's, to where they are usually pretty small now. Whereas in the 90's, jumps went from being banned to being built in parks everywhere.


Also, "Moguls are a product of our sport. It's not something you've got to go spend a million dollars on building a little... little playing field. It just happens naturally."

I'd think it would be harder to sue over a normally occuring result of skiing that's been around since the invention of ski resorts compared to a manmade obstacle.


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## 4aprice (Oct 18, 2010)

Highway Star said:


> Funny stuff.  You do realize that moguls have got MUCH smaller and easier at most areas all throughout the 1990's, to where they are usually pretty small now.  Whereas in the 90's, jumps went from being banned to being built in parks everywhere.



Smaller moguls?:-o  I've been skiing for 40 + years and don't see a difference in size, maybe the coverage but not size.  I'm hoping this not a Killington thing as I may be skiing there more in the future depending on my daughters college choice.  Asp at Camelback *PA* had some true monsters on it last year. 

Alex

Lake Hopatcong, NJ


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## Highway Star (Oct 18, 2010)

4aprice said:


> Smaller moguls?:-o I've been skiing for 40 + years and don't see a difference in size, maybe the coverage but not size. I'm hoping this not a Killington thing as I may be skiing there more in the future depending on my daughters college choice. Asp at Camelback *PA* had some true monsters on it last year.
> 
> Alex
> 
> Lake Hopatcong, NJ


 
There are typically 3 causes cited regarding reduced mogul size:

- Skis are much shorter than 20 years ago, and snowboards are much more common.  Moguls are shaped smaller and choppier.

- Winch cats.  It is much easier to groom steeps with a winch cat than without, thus they get buffed out after a thaw or before they get too big.

- People just don't like moguls.


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## campgottagopee (Oct 18, 2010)

Highway Star said:


> There are typically 3 causes cited regarding reduced mogul size:
> 
> - Skis are much shorter than 20 years ago, and snowboards are much more common.  Moguls are shaped smaller and choppier.
> 
> ...



:-o:-o:-o


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## legalskier (Oct 18, 2010)

4aprice said:


> Smaller moguls?:-o  I've been skiing for 40 + years and don't see a difference in size, maybe the coverage but not size.  I'm hoping this not a Killington thing as I may be skiing there more in the future depending on my daughters college choice.  Asp at Camelback *PA* had some true monsters on it last year.



+1
Same in the Catskills, especially Hunter West.


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## KingM (Oct 18, 2010)

severine said:


> Glad to see all the comments on the article are calling this guy out for being a dumbass.
> 
> CT is full of Blonskis this year.



The kid is 15. I was a dumbass at 15 and you probably were, too.

I'm not saying the ski resort should give a big payout. If they did, the industry as we know it would quickly die. But still, it sucks for that kid and I don't really blame him for what happened. 99% bad luck.


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## severine (Oct 18, 2010)

KingM said:


> The kid is 15. I was a dumbass at 15 and you probably were, too.
> 
> I'm not saying the ski resort should give a big payout. If they did, the industry as we know it would quickly die. But still, it sucks for that kid and I don't really blame him for what happened. 99% bad luck.


I didn't say that it doesn't suck for the kid. But it was still a dumbass move to take the risk then blame the ski area, *IMHO*.  

But what the hell do I know.


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## Highway Star (Oct 19, 2010)

At 15, I had been building and hitting jumps for several years and typically knew how to do it without getting hurt.


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## neil (Oct 19, 2010)

The defense calls Highway Star to the stand.


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## KingM (Oct 19, 2010)

severine said:


> I didn't say that it doesn't suck for the kid. But it was still a dumbass move to take the risk then blame the ski area, *IMHO*.
> 
> But what the hell do I know.



I agree and I don't think the ski resort should pay the cost. But I've got a 15 year old. 90% of the time he's perfectly reasonable, but 10% of the time he still acts like a preschooler.


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## bvibert (Oct 19, 2010)

You can only do so much to protect someone from themselves.  Yes, he was a 15 year old doing what a 15 year old does; often stupid stuff.  Either through lack of skill or bad luck, or maybe both, he got badly injured.  It happens.  It's not the ski area's fault that he was acting like a 15 year old.


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## legalskier (Oct 20, 2010)

The attorneys made their closing arguments yesterday, echoing some of the thoughts expressed in this thread. Now it's in the jury's hands....

_*Closing arguments heard in Ski Sundown case*
By CHRIS RUELI
LITCHFIELD — Closing arguments in the James Malaguit v. Ski Sundown case took place in Litchfield Superior Court Tuesday, followed by the Judge charging the jury on what laws to follow in order for them to deliberate. *** In the plaintiff’s closing arguments, attorney Ralph Monaco of New London claimed that one reason for Ski Sundown’s negligence was the fact that there was no terrain park fence. The defendants argued that Malaguit made his own decision to go over the terrain feature, and that fences do not keep people out of the terrain park, they keep traffic from crossing through and disrupting the park.
“They failed to take simple inexpensive measures such as this $180 fence to keep inexperienced people out of this park. Not having a fence was a major mistake on their part,” Monaco stated.
This was more than an accident waiting to happen, it was a tragedy waiting to happen, according to Monaco. Fencing is erected for crowd control, not to keep people out of a terrain park, he said.
Fencing was not something that was going to prevent James from going in the terrain park, according to defense attorney Mark Seiger of West Hartford.
“You heard (in testimony) that it wasn’t a crowded evening — fencing was not necessary. That fence wouldn’t have prevented him from going in that terrain park,” Seiger stated.
The defendant’s argued that Malaguit made his own conscious choice to go off the “little big air” feature on the night of his incident.
“James accident was the result of a series of decisions he made on Feb. 17, 2006.
“They (skiers) have to choose the type of terrain they ski; they have to choose the level of trail they go on. Those are choices that skiers need to make, and they need to take responsibility,” Seiger stated.
If a skier does not have the proper judgment, then that is what parents are for, according to Seiger. Ski areas cannot test how good at skiing someone is, Seiger noted.
According to Monaco, Ski Sundown’s unrestricted access to the terrain park is one more reason the facility was negligent. There is no proof of qualification or requirement of competence needed in order to enter the terrain park.
“They let kids make an adult decision, something we as a society try to avoid. A decision driven by profit, not by safety,” Monaco stated. “These (terrain parks) really are very dangerous and they market these things to young people who like being launched in the air. They made a personal choice, as a result we have a young boy who is condemned to living his life as a quadriplegic.”
“This jump is the product of a deliberate decision; there is nothing natural about this. This isn’t inherent in the sport of skiing. Inherent is a quality that you totally can’t take away because it takes away the characteristic of that,” Monaco said.
“There are certain days you don’t forget, and one of those days is the day you stop walking. In a split second his life was changed,” Monaco said.
Malaguit must be moved every two hours throughout the night in order to avoid blood clots. He will lose about $2.3 million in earnings over the course of his life, Monaco noted, in reference to previous testimony. Malaguit’s injuries are nothing short of horrific, according to Monaco.
“That $180 fence could have prevented this. These measures, such as fences and signage, would have prevented this. Ski Sundown was just not that careful, they made a very poor choice by building a very large man-made jump available to everyone,” Monaco stated.
In the defenses’ closing arguments, Seiger stated, *“They (plaintiffs) want you to believe that terrain parks are the most dangerous place on the mountain. (John) Fry believes ski areas took control of the (unsafe) situation starting around 1990. When they realized jumping was taking place all over the mountain,”* Seiger stated. Fry, a former editor of Ski Magazine, authored the book, “The Story of Modern Skiing.” *The ski industry built terrain parks for a safe and reasonable place for skiers to take jumps, according to Fry’s testimony, Seiger noted. “Skiing is safe today because of terrain parks,” Fry said in his testimony*, according to Seiger.
After the conclusion of the closing arguments, Judge John A. Danaher III charged the jury. The jurors must first determine whether Ski Sundown is liable for the incident before deciding on damages, Danaher noted.
The plaintiff is claiming that Ski Sundown was negligent in causing Malaguit’s injuries. The defendant is denying this, claiming that the skier assumes the risk after skiing off the jump at Ski Sundown, Danaher noted.
““Negligence is the violation of legal duty to use reasonable care under the circumstances,” Danaher stated.
Reasonable care is what a reasonable person would use in normal circumstances, according to Danaher.
“You must decide whether the defendant or plaintiff was negligent,” Danaher stated.
The plaintiffs must prove that being injured while skiing over a terrain feature is not a hazard inherent in the sport of skiing, according to Danaher.
“If the defendant is found negligent, you must attempt to put the plaintiff in the same position, as far as money can do it, as they were before suffering injuries,” Danaher stated to the jury.
The marshal delivered the charge to the jury and then proceeded to bring all of the evidence from the case into the juror room in order for them to deliberate.
The case will continue on Wednesday with further juror deliberation._
http://www.registercitizen.com/articles/2010/10/20/news/doc4cbe6f66c35e8047334266.txt


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## jaywbigred (Oct 20, 2010)

Highway Star said:


> BS.  Maybe the sizes of the rails and various jibs are a bit bigger, but jumps have definitely gotten gradually smaller since the 90's.  Tell me where in the east has a 45-60 foot table top with a 30-35+ degree jump......?



You really believe that the overall trend in the ski industry between 1990 and 2010 has been the shrinking of park features/jumps? The jumps in the XL parks where I've skied over the last few years such as Mt Snow, PCMR, Breckenridge, Snowbasin, and Stratton have absolutely no comparison, in my memory, to the parks of the 90s and early 2000s.


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## AdironRider (Oct 20, 2010)

Didnt Snoqualmie have to pay out millions on a very similar case? 

Plantiff argued that the jump wasnt built properly, and had to short/steep of a landing zone so a local ripper sent it to far on a jump with no room for error. 

Not sure if this even applies, but I actually agreed with that lawsuit. If you're going to build a terrain park, you better do it right.


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## Chris Sullivan (Oct 20, 2010)

The jury deliberated for 1 hour and 24 minutes and came back with a decision in favor of Ski Sundown.


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## 4aprice (Oct 20, 2010)

Chris Sullivan said:


> The jury deliberated for 1 hour and 24 minutes and came back with a decision in favor of Ski Sundown.



Hooray

Alex

Lake Hopatcong, NJ


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## 2knees (Oct 20, 2010)

Chris Sullivan said:


> The jury deliberated for 1 hour and 24 minutes and came back with a decision in favor of Ski Sundown.




Glad the jury saw it objectively.  It must be tough when you're considering the fate of someone so young who will spend the rest of their life in a wheelchair but it sure seems like 100% the correct decision.


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## SkiDork (Oct 20, 2010)

Chris Sullivan said:


> The jury deliberated for 1 hour and 24 minutes and came back with a decision in favor of Ski Sundown.



Chris, glad to hear it.  Hope the young man gets his needs met as well.


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## Madroch (Oct 20, 2010)

Good news for Sundown, the ski industry and all who enjoy the sport, but bittersweet due to the nature of the tragedy-- where a minor's momentary lack of judgment engaging in an activity we all love affects his entire life.  Nonetheless, the right result in my opinion... which opinion is both biased and based upon a limited knowledge of the facts.

If anything, hopefully the publicity given to the lawsuit and the plaintiff's injuries will make at least one person think twice before attempting something beyond their skill level....


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## Grassi21 (Oct 20, 2010)

2knees said:


> Glad the jury saw it objectively.  It must be tough when you're considering the fate of someone so young who will spend the rest of their life in a wheelchair but it sure seems like 100% the correct decision.



+1  Well said 2knees.


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## jaywbigred (Oct 20, 2010)

Madroch said:


> Good news for Sundown, the ski industry and all who enjoy the sport, but bittersweet due to the nature of the tragedy-- where a minor's momentary lack of judgment engaging in an activity we all love affects his entire life.  Nonetheless, the right result in my opinion... which opinion is both biased and based upon a limited knowledge of the facts.
> 
> If anything, hopefully the publicity given to the lawsuit and the plaintiff's injuries will make at least one person think twice before attempting something beyond their skill level....



+1 everything you said Madroch. Especially the last part.


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## legalskier (Oct 20, 2010)

Chris Sullivan said:


> The jury deliberated for 1 hour and 24 minutes and came back with a decision in favor of Ski Sundown.



_*BREAKING NEWS    
SKI SUNDOWN FOUND NOT AT FAULT*
October 20, 2010
SAM Magazine--October 20, 2010--A jury returned a unanimous defense verdict yesterday in the case of James Malaguit v. Ski Sundown, Inc., in the Connecticut Superior Court, Litchfield, Conn. James Malaguit was 15 years old on February 17, 2006, when he went off a terrain feature in Ski Sundown’s terrain park. ****_
http://www.saminfo.com/news/article.php?tid=4801

That was a very fast verdict and a huge win. Sundown's lawyers deserve a tip of the hat. The thoroughness and tenacity with which they did their job was impressive. Earlier I posted the court website which detailed much of the work they were doing that takes place out of the public eye ( http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=LLICV085003453S), which oddly enough prompted someone to post an insulting quip about them supposedly racking up "billable hours."  It's now clear that what they were doing was avoiding another Blonski verdict. 
Nice work, counselors.


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## drjeff (Oct 20, 2010)

Madroch said:


> Good news for Sundown, the ski industry and all who enjoy the sport, but bittersweet due to the nature of the tragedy-- where a minor's momentary lack of judgment engaging in an activity we all love affects his entire life.  Nonetheless, the right result in my opinion... which opinion is both biased and based upon a limited knowledge of the facts.
> 
> If anything, hopefully the publicity given to the lawsuit and the plaintiff's injuries will make at least one person think twice before attempting something beyond their skill level....



Unfortunately as long as there are adolescent and 20 something year old generally males, hand held video cameras and media outlets such as youtube we'll more than likely keep hearing about park injuries as a result of someone trying to do something ability wise that they shouldn't remotely be attempting :smash:


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## severine (Oct 20, 2010)

Madroch said:


> Good news for Sundown, the ski industry and all who enjoy the sport, but bittersweet due to the nature of the tragedy-- where a minor's momentary lack of judgment engaging in an activity we all love affects his entire life.  Nonetheless, the right result in my opinion... which opinion is both biased and based upon a limited knowledge of the facts.
> 
> If anything, hopefully the publicity given to the lawsuit and the plaintiff's injuries will make at least one person think twice before attempting something beyond their skill level....



+1 However, it's a fine line. How do you grow in your skills without attempting things beyond your skill level? If you want to grow in your skills, you will be taking risks. In so doing, you need to take responsibility for the potentially hazardous results of those risks that _you choose to take_.


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## mondeo (Oct 20, 2010)

severine said:


> +1 However, it's a fine line. How do you grow in your skills without attempting things beyond your skill level? If you want to grow in your skills, you will be taking risks. In so doing, you need to take responsibility for the potentially hazardous results of those risks that _you choose to take_.


Something else no one has mentioned is that sometimes, stuff just happens. I broke my wrist on a stupid air bump by catching an edge, and have had a couple slight concussions and many would-be concussions (I'm a firm believer in helmets at this point.) I've seen really good skiers overrotate helis they'd done hundreds of times in the past; one is going to be spending this season rehabing an ACL because of a bad heli. Simon Dumont ruptured a spleen and broke his pelvis in three places when he overshot a 100 foot jump (by 80 feet.) The kid could very well have been entirely competent at taking the jump, but just screwed up this one time. It happens.


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## Grassi21 (Oct 20, 2010)

drjeff said:


> Unfortunately as long as there are adolescent and 20 something year old generally males, hand held video cameras and media outlets such as youtube we'll more than likely keep hearing about park injuries as a result of someone trying to do something ability wise that they shouldn't remotely be attempting :smash:



Don't forget to blame the Jackass movie franchise as well....


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## gmcunni (Oct 20, 2010)

Great news but the lingering question is whether or not the outcome has restored bvibert's faith in out legal system.


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## bvibert (Oct 20, 2010)

gmcunni said:


> Great news but the lingering question is whether or not the outcome has restored bvibert's faith in out legal system.



Not that I think anyone really cares about my opinion; The jury's decision is a step in the right direction, but my lack of faith runs deeper than just one case.


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## powhunter (Oct 20, 2010)

Chris Sullivan said:


> The jury deliberated for 1 hour and 24 minutes and came back with a decision in favor of Ski Sundown.




Great news Chris!!  

steveo


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## Highway Star (Oct 20, 2010)

jaywbigred said:


> You really believe that the overall trend in the ski industry between 1990 and 2010 has been the shrinking of park features/jumps? The jumps in the XL parks where I've skied over the last few years such as Mt Snow, PCMR, Breckenridge, Snowbasin, and Stratton have absolutely no comparison, in my memory, to the parks of the 90s and early 2000s.


 
Yes. Granted, I haven't skied every park in the east every year for the past 20 years, but I know back in the late 90's at Mt. Snow they had a pretty steep 45 foot table, other areas had some almost that big, but I haven't seen anything like that lately in a park. That was back around the time they were hosting the x-games, but not in the x-games park. They had HUGE jumps for the x-games. In the 90's, people would typically build jumps on natural landings that were at least 40 feet back - that became the target size for a big tabletop in a park. Killington, infact, currently has small jumps than just 5 years ago when they had the viper pit jumps and the wildfire park, with a (not steep) 55 foot table at the bottom. 

As terrain parks and new school skiing has evolved, ski areas build kickers much flatter for less height in the air, and they really don't get much bigger than a 30-35 foot table these days. The average newschooler's don't care that much, since the short twintips make it harder to hit huge jumps and it's easy to spin and trick on short skis. Back when we were jumping on 205's, you needed at least a 40 foot table with a good long landing (traveling 60-80 feet distance) to do good tricks.


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## drjeff (Oct 20, 2010)

Highway Star said:


> Yes. Granted, I haven't skied every park in the east every year for the past 20 years, but I know back in the late 90's at Mt. Snow they had a pretty steep 45 foot table, that I haven't seen anything like since. That was back around the time they were hosting the x-games, but not in the x-games park. They had HUGE jumps for the x-games. Killington, infact, currently has small jumps than just 5 years ago when they had the viper pit jumps and the wildfire park, with a (not steep) 55 foot table at the bottom.



The thing right now about Mount Snow and their parks that I think is a great thing, is how they devoted all of Carinthia to them.  Now at first as someone who spends about 99% of my time on the hill NOT in the parks, I thought that loosing formerly some terrain that i used to enjoy skiing to the parks was a bad thing.  But seeing what Mount Snow did interms of providing a good variety of park features for ALL ability levels, and how that generally speaking as developed a bunch of park users on features of appropriate size for their ability level,  that's a great thing in my book.  Also they way that Mount Snow has constructed their parks, on most of their parks designated "medium" sized,  side by side you'll often see say a 5 foot jump and a 10 foot jump as well as a rails/boxes of similar ability, so that you can have a group of friends using the same park where the more advanced ones have features they can have fun on side by side with those of lesser ability, and the HUGE features are off on their own seperate trails from the medium features, which is also a good design feature with respect to safety IMHO


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## Highway Star (Oct 20, 2010)

drjeff said:


> The thing right now about Mount Snow and their parks that I think is a great thing, is how they devoted all of Carinthia to them. Now at first as someone who spends about 99% of my time on the hill NOT in the parks, I thought that loosing formerly some terrain that i used to enjoy skiing to the parks was a bad thing. But seeing what Mount Snow did interms of providing a good variety of park features for ALL ability levels, and how that generally speaking as developed a bunch of park users on features of appropriate size for their ability level, that's a great thing in my book. Also they way that Mount Snow has constructed their parks, on most of their parks designated "medium" sized, side by side you'll often see say a 5 foot jump and a 10 foot jump as well as a rails/boxes of similar ability, so that you can have a group of friends using the same park where the more advanced ones have features they can have fun on side by side with those of lesser ability, and the HUGE features are off on their own seperate trails from the medium features, which is also a good design feature with respect to safety IMHO


 
I haven't skied mt. snow for years but their park setup sounds world class.

I should also note, there is a HUGE difference in danger and difficulty level between a flattish (20-25 degree ramp) 30-ft table found in most parks vs. a steep (35-40 degree ramp) 45 ft table, due to the hang time and height in the air involved.


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## HowieT2 (Oct 20, 2010)

The amount of time the jury was out indicates that they had little trouble dispensing with the claims against sundown.  Given the gravity of the situation the decision was pretty quick.  it appears the jury did what everyone here expected.  The moral of the story is that the plaintiff had his day in court, presented his evidence and was rejected by a jury of ordinary people without any bias, prejudice or sympathy for either side.  The system worked.  It may not be work perfectly, but show me a better way.  Each of these cases sets a standard of care that other resorts can refer to in establishing their practices.  Why not put some fencing and signs around the terrain park features?  If it prevents one tragedy like the one in this case, it is definitely worth it.


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## gmcunni (Oct 20, 2010)

flabbergasted to see comments on Register Citizen (http://www.registercitizen.com/articles/2010/10/20/news/doc4cbe6f66c35e8047334266.txt) with parents still blaming Ski Sundown.  

i've met people who could do no wrong.  anything that happened in their life which wasn't perfect was somebody else's fault.  i guess i didn't  realize there were so many of those perfect people out there.


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## mister moose (Oct 20, 2010)

Excellent news.  There is nothing misplaced about sympathy for what the plaintiff has had to endure, but it also shouldn't be directed where blame doesn't lie.



severine said:


> How do you grow in your skills without attempting things beyond your skill level? If you want to grow in your skills, you will be taking risks. In so doing, you need to take responsibility for the potentially hazardous results of those risks that _you choose to take_.



Coaches.  Training.

There are certain things you shouldn't try on your own without training.  I can think of a short list...

Rewiring your house
Parachuting
Hang gliding
Scuba diving
ski jumping
hunting with a firearm
homemade fireworks

You get the idea.  I'm sure there's lots on that list I left out.

I'm all for signs at terrain parks, seeded moguls, steep terain ahead, etc.  I don't think it would have made a difference in this case though.  Here's a question:  How many of us would expect that at his level of skiing experience the plaintiff had already seen multiple signs at Sundown or other areas describing the hazardous nature of terrain parks?  The places I ski I see them all over the place.  There had been testimony in this case on what the industry standard is in terrain park construction.  That should be the criteria, not theorizing on whether or not one more sign, one more fence, one more (fill in the blank) would prevent an accident.  We already know how to prevent all accidents.  Close the ski hill.

I'm glad we didn't close the hill today.


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## severine (Oct 20, 2010)

mister moose said:


> Excellent news.  There is nothing misplaced about sympathy for what the plaintiff has had to endure, but it also shouldn't be directed where blame doesn't lie.
> 
> 
> 
> ...


I wasn't arguing in his favor. Just tempering the statement made before about not skiing outside the ability. I would venture that many on here learned to ski moguls, for example, without professional coaching. At the time they began, skiing moguls was outside their ability level. It was a risk they took and ultimately the responsibility for what happens falls on them. They don't have to learn to ski moguls-they choose to. Choosing therefore requires ownership; accepting responsibility that whatever happens after that choice is made is a result of your own actions. Nobody forced you to do it.

I tore my ACL just skiing down a mellow blue run at pretty slow speed. Stuff happens. I chose to put those skis on, get on the lift, and go down the hill. Ultimately, my choice led to that injury and while it sucks now that it still bothers me over 2 years later, that was my choice. I didn't have to ski that night. I don't blame anyone but myself.


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## skidmarks (Oct 20, 2010)

Great News!!

I feel bad for the kid, hope his parents insurance takes care of things. Very happy that Ski Sundown didn't underwrite this trail lawyer's vacation home fund!!


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## bvibert (Oct 21, 2010)

gmcunni said:


> flabbergasted to see comments on Register Citizen (http://www.registercitizen.com/articles/2010/10/20/news/doc4cbe6f66c35e8047334266.txt) with parents still blaming Ski Sundown.
> 
> i've met people who could do no wrong.  anything that happened in their life which wasn't perfect was somebody else's fault.  i guess i didn't  realize there were so many of those perfect people out there.



Wow, just wow.  Some people really don't get it.


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## Grassi21 (Oct 21, 2010)

bvibert said:


> Wow, just wow.  Some people really don't get it.



While reading the Sundown haters comments all I heard was "when I am not watching my kid (if I even care to monitor his/her behavior at all), he/she is YOUR problem."  F that!  I see it on a daily basis at the HS.  Take some initiative in raising your children and don't rely on an coach, camp counselor, or ski area to teach your kids right and wrong.


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## 2knees (Oct 21, 2010)

Grassi21 said:


> While reading the Sundown haters comments all I heard was "when I am not watching my kid (if I even care to monitor his/her behavior at all), he/she is YOUR problem."  F that!  I see it on a daily basis at the HS.  Take some initiative in raising your children and don't rely on an coach, camp counselor, or ski area to teach your kids right and wrong.



anything my kids do correctly is because of how i raised them.  anything they do wrong is the fault of teachers, other parents, friends etc....

I basically hear this everyday from parents in my neighborhood.  well, if you read between the lines of what they're saying but you get the idea.


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## SkiDork (Oct 21, 2010)

in all fairness there's a bit of a difference between just letting the kid tool around the slopes unsupervised and entrusting the kid to a camp counselor or a coach.


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## Madroch (Oct 21, 2010)

SkiDork said:


> in all fairness there's a bit of a difference between just letting the kid tool around the slopes unsupervised and entrusting the kid to a camp counselor or a coach.



+1.  I was always in camps as a young kid when not skiing with adult-- same with my kids (to date anyway), with a coach/teacher or with me... period.  This year may change/challenge that but I hope my hard work stressing safety (how to ski, where to ski, where to stop, where not to ski and stop (landings of park features, middle of the trail, on another person, etc.) pay off.


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## mondeo (Oct 21, 2010)

SkiDork said:


> in all fairness there's a bit of a difference between just letting the kid tool around the slopes unsupervised and entrusting the kid to a camp counselor or a coach.


There's also a big difference between a 12 year old and a 15 year old. Odds of everyone blaming parents or Sundown of not having a kid in high school yet?

Heck, at 15 I'm pretty sure I was going skiing without my parents, just my older brother. I know that I was spending a significant amount of time on my own once we got to the hill. Independance has to start at some point.


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## Grassi21 (Oct 21, 2010)

SkiDork said:


> in all fairness there's a bit of a difference between just letting the kid tool around the slopes unsupervised and entrusting the kid to a camp counselor or a coach.



I will accept that in a coach/counselor setting.  

What I was getting at is that kids aren't learning responsibility and accountability at home.  When a coach or counselor calls out a kid for not taking control of his or her situation or growth the coach gets blamed.  Is it my responsibility to teach this to someone's kids or should it start at home?  It should start at home and get reinforced by coaches, counselors etc.  I see this every spring.  And where it applies to the situation in this thread is that if kids were more responsible and accountable, ski areas wouldn't get sued for poor judgment of a minor.


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## gmcunni (Oct 21, 2010)

maybe it isn't over... guess i'm not surprised.


> Ralph Monaco of New London, Conn., the Plaintiff's attorney, indicated that he would file an appeal based, in part, on the Judge's decision to not allow the jury to hear details of a 2005 effort to change a Connecticut law granting immunity to ski area operators.


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## vonski (Oct 21, 2010)

I agree with the outcome of the lawsuit.  In regards to kid responsibility. My son is 12 now and last year and the year prior he was allowed to ski with his friends at Ellen at Sugarbush. He would have radio and parents have them too.  Never a problem, no unmarked woods skiing was one rule.  and they were in group of three.  Last year, if no friends around he would make a friend in terrain park and hang out there on his own.  I taught him well and he knows his limitations.  He is also a good skier.  So, depending upon the kid and maturity level also plays a factor in this.  I never want to get the call that he is hurt but if he does get hurt it is his and my responsibility solely.   

I just loved the helicopter parents making comments on the registered citizen website article.  UGGHH!!


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## gmcunni (Dec 23, 2010)

guess it ain't over...

*Plaintiff in Ski Sundown case filed motion to set aside verdict
*
http://www.registercitizen.com/arti...oc4d13d969c540d275080803.txt?viewmode=default


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## gmcunni (Jun 19, 2012)

almost 2 years later this is (was??) still going on.

[h=1]Court rules Ski Sundown in New Hartford not liable for skier's injuries[/h]HARTFORD — The state Appellate Court says a ski area in New Hartford isn't liable for an accident in 2006 that paralyzed a 15-year-old boy.

http://www.registercitizen.com/articles/2012/06/19/news/doc4fe076eb6f707121677692.txt


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## drjeff (Jun 19, 2012)

gmcunni said:


> almost 2 years later this is (was??) still going on.
> 
> *Court rules Ski Sundown in New Hartford not liable for skier's injuries*
> 
> ...



Unfortunately, my guess is that this won't be the last appellate court ruling that we'll hear on this issue.  A tragic event all for the indivdual for sure, but there are times when the parties involved must accept that fact that it was the actions solely of that individual that were the cause of the accident, and that as unfortunate as it was/is, it is they, themselves, and not some other party that will have to deal with the financial implications of their own doing.  This ruling my guess could very well be appealed to the State Supreme Court


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## skidmarks (Jun 21, 2012)

It was a fair trial and the jury made the right call. I hope the kids family has good health insurance to take care of his needs.


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## HowieT2 (Jun 22, 2012)

drjeff said:


> Unfortunately, my guess is that this won't be the last appellate court ruling that we'll hear on this issue.  A tragic event all for the indivdual for sure, but there are times when the parties involved must accept that fact that it was the actions solely of that individual that were the cause of the accident, and that as unfortunate as it was/is, it is they, themselves, and not some other party that will have to deal with the financial implications of their own doing.  This ruling my guess could very well be appealed to the State Supreme Court



fwiw- given the catastrophic nature of the injuries involved, it's most likely that the medical expenses are being borne by medicare/medicaid.  so it's not so simple as to say the victim is bearing responsibility for the accident, when we all, as taxpayers, are.  It's important, in order to make tragedies such as this less likely, that both the participant and the resort operator exercise reasonable care in what they are doing, which is, in general, what the law requires.  In NY, a skier assumes the risk of the dangers inherent in the activity and the resort operator may only be held responsible if it in some way negligently created a dangerous/hazardous condition not inherent in the sport.  for example, the operator wouldnt be responsible for a skier crashing into a snow gun tower on the side of a trail, but could be responsible if they left an unmarked hose running across an open trail which causes a skier to fall.


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## jack97 (Jun 24, 2012)

Not sure about this but I thought most personal injury lawyers take a percentage of the settlement and don't bill by the hour. If so, then the plaintiff and lawyer has nothing to lose but their time to take their case up to the highest court. 

Unfortunately, Sundown still has to pay their legal team to prepare and represent them in court. This situation blows for them. They are in a way being blackmailed; pay their own laywers or pay the plaintiff to make this go away.

No wonder laywers get a bad rep.


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## HowieT2 (Jun 24, 2012)

jack97 said:


> Not sure about this but I thought most personal injury lawyers take a percentage of the settlement and don't bill by the hour. If so, then the plaintiff and lawyer has nothing to lose but their time to take their case up to the highest court.
> 
> Unfortunately, Sundown still has to pay their legal team to prepare and represent them in court. This situation blows for them. They are in a way being blackmailed; pay their own laywers or pay the plaintiff to make this go away.
> 
> No wonder laywers get a bad rep.



You could not be more wrong.  The plaintiffs lawyer not only doesnt get paid unless they win, but also pays for the litigation expenses.  So putting aside the value of the lawyers time, he probably laid out of his pocket somewhere in the neighborhood of 50k-100k just to get to this point.  Maybe more.

On the other hand, the defendant ski sundown, is being represented by their insurance carriers attorneys who are either employees of the carrier or on retainer.  Either way, it is highly unlikely this is costing sundown much if anything.  

Lawyers get a bad rap because the general public is misinformed due to the propaganda campaign being waged for the last 30 years by insurance industry, big business etc.


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## jaytrem (Jun 24, 2012)

HowieT2 said:


> Lawyers get a bad rap because the general public is misinformed due to the propaganda campaign being waged for the last 30 years by insurance industry, big business etc.



You couldn't be more wrong.  Lawyers get a bad rap because there really are a bunch of sleazy ones out there.  But there are also a bunch of lousy teachers that give teachers a bad name.  And a bunch of corrupt cops that give cops a bad name.  And a bunch on knuckle smacking nuns that give nuns a bad name.  The only group that is actually 100% sleazy would be the career politicians.


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## deadheadskier (Jun 24, 2012)

jaytrem said:


> You couldn't be more wrong.  Lawyers get a bad rap because there really are a bunch of sleazy ones out there.  But there are also a bunch of lousy teachers that give teachers a bad name.  And a bunch of corrupt cops that give cops a bad name.  And a bunch on knuckle smacking nuns that give nuns a bad name.  The only group that is actually 100% sleazy would be the career politicians.



you forgot snowboarders



:lol:


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## HowieT2 (Jun 24, 2012)

jaytrem said:


> You couldn't be more wrong.  Lawyers get a bad rap because there really are a bunch of sleazy ones out there.  But there are also a bunch of lousy teachers that give teachers a bad name.  And a bunch of corrupt cops that give cops a bad name.  And a bunch on knuckle smacking nuns that give nuns a bad name.  The only group that is actually 100% sleazy would be the career politicians.



You are correct.  It just seems that the prevailing public opinion is that, all lawyers and lawsuits are sleazy.  We do have our share though.


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## legalskier (Jun 25, 2012)

Everyone hates a lawyer....except those standing next to one at counsel table.
;-)


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## jack97 (Jun 25, 2012)

HowieT2 said:


> You could not be more wrong. The plaintiffs lawyer not only doesnt get paid unless they win, but also pays for the litigation expenses. So putting aside the value of the lawyers time, he probably laid out of his pocket somewhere in the neighborhood of 50k-100k just to get to this point. Maybe more.
> 
> On the other hand, the defendant ski sundown, is being represented by their insurance carriers attorneys who are either employees of the carrier or on retainer. Either way, it is highly unlikely this is costing sundown much if anything.
> 
> Lawyers get a bad rap because the general public is misinformed due to the propaganda campaign being waged for the last 30 years by insurance industry, big business etc.



If the insurance company did and continues to pay for Sundowns defense.... this means in the future, I and fellow skiers / riders will eventually pay for the higher insurance policy due to lawsuits taken to this level. 

For those who have not followed this case, the technically nuance that is costing the poor plaintiff attorney this much money is whether jumping is consider part of skiing. Taken further the appellate process was whether the judge presiding gave jurors the proper instructions. IMO, a high price to pay for arguing over a legal technicality. 

http://www.registercitizen.com/arti...oc4cb8d791cd407268913236.txt?viewmode=default


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## jack97 (Jun 25, 2012)

legalskier said:


> Everyone hates a lawyer....except those standing next to one at counsel table.
> ;-)




I had a lawyer where it cost me about 2k just to read some emails and thousands just to sit/stand next to me in court. My last lawyer said that one of his clients had to take a second mortgage just to hear the case at the state supreme court.... its the parasitic nature of the process that troubles me.


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## HowieT2 (Jun 27, 2012)

jack97 said:


> If the insurance company did and continues to pay for Sundowns defense.... this means in the future, I and fellow skiers / riders will eventually pay for the higher insurance policy due to lawsuits taken to this level.
> 
> For those who have not followed this case, the technically nuance that is costing the poor plaintiff attorney this much money is whether jumping is consider part of skiing. Taken further the appellate process was whether the judge presiding gave jurors the proper instructions. IMO, a high price to pay for arguing over a legal technicality.
> 
> http://www.registercitizen.com/arti...oc4cb8d791cd407268913236.txt?viewmode=default



logically you are correct, but the claims defense costs are generally not the most significant factor in insurance rate increases.  It is what the carrier is earning on its investments which is why rates go up when the stock market goes down.  of course, higher defense costs do figure into future rates.  my firm pays several thousand dollars a year for workers compensation insurance required by law, yet we've never had and likely never will have a claim. insurance is a great business, hence warren buffets ownership of geico and the reinsurance companies.  they dont spend billions on advertising for nothing.

whether the judge's instructions were proper is no "technicality" but the essence of whether the jury's decision is just.  the instructions are how the judge explains what the law is to the jury, which then must apply the facts as they find them to be to the law.  As previously discussed, the law with respect to the liability of ski resort operators is generally (I dont know about CT in particular) pretty favorable to them and most people would consider a reasonable balancing of interests.


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## HowieT2 (May 18, 2013)

Bump.

curious as to azoners opinion of the following:

10 year old child of unknown ability falls on a beginner slope into the concrete base of a lift tower.  Helmet cracks, suffers severe brain injury.  Concrete was not padded nor guarded in any manner.
is striking the concrete base a risk inherent in the sport? Or does the lack of the usual and customary padding render it outside what is ordinarily encountered?


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## marcski (May 19, 2013)

Howie...you can't sue a ski area.  If you must, refer it out and take a referral fee. 
.


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## HowieT2 (May 19, 2013)

marcski said:


> Howie...you can't sue a ski area.  If you must, refer it out and take a referral fee.
> .



Dont even know the jurisdiction yet. But seriously, do you recall seeing an unpadded lift tower on a trail?


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## legalskier (May 19, 2013)

Someone somewhere sometime (I think it was a ski patroller on a lift) told me the purpose of the pads is for warning people, not protecting them. 
Which would explain the bright colors, but not the "padding" part.
Whatever it is, it does raise the question whether a standard pad would have prevented this injury if one had been in place. Also, does the absence of a pad constitute a failure to warn?


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## marcski (May 19, 2013)

The fact that it is a beginner trail bodes in your favor. The injured's skill and ski experience levels would come into play.


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## HowieT2 (May 19, 2013)

legalskier said:


> Someone somewhere sometime (I think it was a ski patroller on a lift) told me the purpose of the pads is for warning people, not protecting them.
> Which would explain the bright colors, but not the "padding" part.
> Whatever it is, it does raise the question whether a standard pad would have prevented this injury if one had been in place. Also, does the absence of a pad constitute a failure to warn?



Thats a proximate cause issue.  I'd take my chances with a jury on that.  The threshold issue is assumption of risk.  I think this is a close call.  if the tower was appropriately padded, hitting it, is a risk inherent and the case gets dismissed.  But I'm not sure an unpadded tower is an inherent risk.


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## jaytrem (May 19, 2013)

HowieT2 said:


> Dont even know the jurisdiction yet. But seriously, do you recall seeing an unpadded lift tower on a trail?



A few of the smaller places I skied in WY/ID this year didn't have padding on the towers.  I was surprised the first time I noticed it.


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## HowieT2 (May 19, 2013)

jaytrem said:


> A few of the smaller places I skied in WY/ID this year didn't have padding on the towers.  I was surprised the first time I noticed it.



Did some research.  In ny, padding on lift towers is required by statute.


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