Vt. St. Ann. tit. 12, § 1037 removes from the state’s comparative negligence statute participants in any sport, who assume, as a matter of law, "the dangers that inhere therein insofar as that are obvious and necessary." A proposed amendment would add language creating a statutory basis for negligence waivers for sport participants, including provisions to permit parents to sign such waivers on behalf of their children. 2005 Vermont House Bill 315(SN). Vt. St. Ann. tit. 12, § 513 places a special one year statute of limitations on "actions to recover for injuries sustained while participating in sport of skiing." Tramways and lifts are regulated separately by Vt. St. Ann. tit. 32 §§ 701 to 712. Skiers are liable for rescue expenses, attorneys fees and costs, for operations resulting from their access of terrain outside the open and designated skiing areas; ski area operators and rescuers are exempted from liability arising from rescue operations, excepting only "gross negligence." Vt. St. Ann. tit. 12 § 1038.
Exculpatory agreements obtained as part of lift tickets or as a condition of participation have been held void as against public policy; the public policy is that which "underlies the law of premises liability." Dalury v. S-K-I Ltd., 670 A.2d 795 (Vt. 1995); see also Spencer v. Killington, Ltd., 702 A.2d 35 (Vt. 1997).
In Frant v. Haystack Group, Inc., 641 A.2d 765 (Vt. 1994), the Vermont Supreme Court found that a 4 in. X 4 in. fence post supporting a rope lift maze was not a danger inherent in the sport, and that a jury should have been permitted to hear evidence of safer alternatives, such as "forgiving" plastic or padding that might have reduced the hazard. An employee handbook provision and written policy notwithstanding, a ski area was found to have no duty to identify skier who collided with plaintiff in O’Connell v. Killington, Ltd., 665 A.2d 39 (Vt. 1933). Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786 (D.Vt. 1951), the most widely cited case in support of the inherent danger rule, nevertheless stated, in dicta, that the ski area operator could be held liable if there was evidence of dangers existing on the trail which reasonable prudence would have foreseen and corrected. One particular Vermont case is widely accredited for the reactionary wave of ski safety statutes that began in the late 1970s. Like many other states, Vermont had adopted comparative negligence by statute. In a case called Sunday v. Stratton Corp., 390 A.2d 398 (Vt. 1978), the court ruled that the common law doctrine of assumption of risk was inappropriate in a comparative negligence case involving a downhill skiing injury. On facts nearly identical to those in Wright, the Vermont Supreme Court also held that not every risk or fall was necessarily inherent in the sport. As indicated above, the Vermont legislature, along with many other states, sought to revive and preserve the doctrine by statute. One case epitomizes the assumption of risk panic, Dillworth v. Gambardella, 970 F.2d 1113 (2d Cir. 1992) (applying the doctrine to deny recovery in a skier/skier collision). This holding stands in contrast to the opinion in Pitasi v. Stratton Corp., 968 F.2d 1558 (2d Cir. 1992), finding that the jury was not barred from finding resort liable for negligent failure to warn. However, an even more recent unpublished opinion with the same defendant found that the burden of proving whether the inherent danger statute applied rested on plaintiff. Mahdessian v. Stratton Corp., 2000 WL 302781 (2d Cir. 2000) (statute absolved defendant of liability in the case, even though danger arose from man-made obstacle).
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