Sports and Torts

I. Case of the Week

Sports have been a prevalent theme this week. Although I have always been more enthused to participate in sports than to “spectate” or to discuss them, it is hard to avoid the Superbowl chatter and the sporting paraphernalia that grows like a blue and green mold around the city whose team is playing in the Superbowl for the first time. When I think about Superbowl Sunday as a child, with the exception of those years where my home state team (Go Broncos) was playing (and usually loosing,) we usually thought it was a great day to go skiing: no crowds, often the best conditions of the year, and you feel substantially better after having spent the day with cold mountain air in your face than filling it with potato chips and hot wings. I grew up on the slopes of the Rockies, and by my teenage years, my friends and I were searching out for more steeps, bigger jumps, and more powder tucked away in the heavily forested areas off of the designated slopes. For this reason, I was particularly interested in a series of skiing cases that we looked at in our Torts class this week.

The court in Sunday v. Stratton Corp, 136 Vt. 293 (1978) found that the risk of hitting a bush on a novice run is not an assumed risk of skiing and that the resort has a duty to clear such bushes and has a liability for injuries caused by such an obstruction. As is often the case in other areas, in skiing there a strong delineation between the “novice” at the resort for the spring break holiday with rented skis, a condo full of relatives, and a “package deal” and the “expert” who is crashing on his friends couch, spent a large portion of his savings on new skis, and is thrilled to take those new skis into places where not even the ski patrol has been; the law here is making the same distinction. The case was originally decided on a directed verdict for the defendant (motion granted when after all of the reasonable inferences are made in favor of the non-moving party and facts are seen in a light most favorable to the non-moving party, a judge finds that no reasonable jury could find for plaintiff) based on the theory that a bush is an inherent danger of the sport. My initial reaction to this case, as one who considers himself in that category of skier that searches out for the steep and deep, was to find the trial court decision correct, and to laugh at the Vermont Supreme Court reversal of that decision based on the rational that the resort has a duty to clear bushes from novice trails. This case forced me to put myself in the mind of the plaintiff, now a permanent quadriplegic, and imagine what his reasonable expectations and understanding of skiing were, and what responsibility a resort owes to such a customer. I also understood that a defense attorney’s only change to win this case would be to not have to try it to a jury. As I tried to piece together the facts of the case I imagined a situation where the skier hit the bush. I have hit bushes before myself (luckily to less disastrous outcomes) and I have generally felt that even though I did not see the bush, hitting a bush or a tree or a rock is a risk of skiing, so it was difficult to put myself in the mind of the plaintiff, but the exercised revealed for me what might be at the essence of tort law. At the center of tort law is one question: After all of his pain and suffering and injuries that will affect him for the rest of his life, what is it that will make him whole and who is responsible for making him whole. (I am leaving aside the more existential question as to whether or not money can really compensate for such an injury). If it really was his fault for hitting the bush because he was skiing in the trees on a run that was marked out of bounds, then he is responsible for his own injuries, but a beginner on a novice trail should not be expected to have to avoid hidden obstacles and the ski resort does owe a duty to make a safe area for such customers. (For more information on this area of the law, check out this site: Skilaw.com

Even after this discussion, the holding of this case does not sit well with me. I don’t know if that is because of my many years of skiing in a state with a strict no-liability statute that protects resorts Colorado Ski Safety Act (which is probably in place because the resorts are such big money makers for the state,) or if I am just adverse to the idea of suing people. Does this mean I am going to work for an insurance company?

II. At Lawge

I do not have an answer to the question presented above, but let us just imagine for a moment that I go and work for the enemy and get paid lots and lots of money to defend big ski corporations like Intra-West against paraplegic plaintiffs with million dollar suits. Sticking with the theme of today’s entry, I am really only interested in one ramification of this hypothetical career choice. What kind of sports would I have to play? Well I certainly think golf would be one. Golf seems to be an initiation into the world of lawyerdom. Read this account from another Blog written by a hiring partner at a large law firm about taking summer associates golfing. Anonymous Lawyer My only golf experiences thus far stem back to highscool and early college days where a group of boys would go out and play a round generally causing a ruckus and slowing down the lawyers who were teeing off behind us (to our great pleasure of course). I guess I will learn the attraction of golf as I proceed in my career, as well the reasons why it attracts so many lawyers and has the reputation for beings as important to learn as say how to download a case on Lexis. And even though I am heading into “a career” with mild resistance, I think I can come around to enjoy golf, but I will stop short of chatting about sports scores. I just don’t think I will ever have “my team” and know the names of players and be able to schmooze about great plays and team statistics. It this makes getting a job at State Farm, then I guess that is a consequence I will have to live with.

III. Gossip Column

If my lack of sports statistical schmoozing does not make me an ideal candidate for certain firms or companies, there are plenty of other law students who can gill the gap. The hour of torts class where we looked at numerous sports cases was a heyday of testosterone burdened sports schmoozers who normally hide behind their laptop screens but were all of a sudden fighting for their chance to espouse their opinions about whether or not a brawl between professional basketball players is an intentional tort. In any other context I would have, written their enthusiasm off as a sublimated attempt to compensate for not making the varsity team, but in an attempt to try and see both sides of the story I realized that not everyone can get excited about the Uniform Commercial Code. It was one of the most lively classes we have had in any class this entire year. Probably the most lively moment came when we debated whether getting shot while hunting is a risk one assumes when one hunts. (there was at least on yes answer that was quickly rebutted by the skinny quiet girl who admitted she owns a gun and hunts regularly, to which our Professor asked if she was packing her gun in class (on a sub-parenthetical parenthetical side note, torts class hasn’t been this lively since we discussed spring loaded guns)). All I can say is that I am glad we have moved on to a new topic-liabilities of third parties for intentional torts-because there will be enough Superbowl talk as it is come Monday morning.

IV. Judicial Quote:

Maybe, on the other hand, I should pay attention to what is going on in sports. Not only might it be advantageous to me in eventually making partner or becoming a judge, but it might lend itself to an overall judicial grounding and positive attitude. Just look at this quote from Justice Earl Warren:

I always turn to the sports pages first, which records people's accomplishments. The front page has nothing but man's failures. Earl Warren