Court Finds Ski Area Not Contractually Liable To Injured Skier Under Forest Service Permit

A court recently held that an injured skier was not owed any duties as to an inherent skiing risk under a state’s recreation safety act.  The skier argued, in the alternative, that the terms of the ski area’s special use permit with the Forest Service obligated the ski area to a higher duty of care to the skier.  The court rejected this argument.

The injured skier sued a Wyoming ski area to recover damages for injuries he suffered from skiing over a large area of unmarked rocks which had been obscured by heavy snow.  The ski area, Jackson Hole Mountain Resort, operated under a Forest Service special use permit.  The permit incorporates the ski area’s ski patrol manual which contains an express requirement that “[u]nusual hazards on ski trails will be marked by members of the Ski Patrol.” In addition to bringing his tort claim, the injured skier also argued that the ski resort was liable to him because it violated this statement in the special use permit which required the ski patrol to mark unusual hazards on in the ski area.  The court, however, held that the skier was not a third party beneficiary of the Forest Service special use permit and the permit did not give him a private right of action to sue the ski resort for violations of the permit terms.  The court held that the special use permit was entered into between the ski area and the Forest Service and, while it allowed the Forest Service to take action if its terms were violated, it did not establish a basis for a third party to make a claim against the permit holder for violating the permit terms.  In addition, the court noted that the ski patrol manual also recognized that it was impossible to mark all hazards because they could arise at any time based on the weather conditions.