Dangerous Recreational Activities and Assumption of Risk
Assumption of risk is an often-used defense against personal injury tort claims involving a dangerous recreational activity or sport. These activities include things like skiing, snowboarding, bungee jumping, horseback riding, or skydiving. Several sports are also considered dangerous, like baseball, hockey, and football among a number of others. Perhaps the signature dangerous recreational activity in New Mexico and the Rocky Mountains is snowskiing/snowboarding.
The idea behind assumption of risk is that despite knowing the inherent perils involved in the activity, an individual voluntarily engaged in it and got hurt as a result. In New Mexico, and most states, the signature of a waiver for most dangerous recreational activities is typically required to prove that the plaintiff voluntarily assumed the inherent risks of engaging in the activity. However, under the New Mexico Ski Safety Act (Act), skiers and snowboarders assume the risks of skiing as a matter of law, without having to sign a waiver.
Under the Act skiers assume the inherent dangers of skiing so long as those dangers are “obvious and necessary.” The Act offers several examples of obvious and necessary risks in skiing, including forest growth and debris, terrain variations, surface and subsurface conditions, bare spots, and plainly visible and marked pole lines, lift towers, and snowmaking equipment. The Act places the responsibility of knowing their own experience level and skiing within it, keeping a safe rate of speed at all times, heeding posted warnings, and skiing within designated areas solely on each individual skier.
For the Act to apply, the injury had to have happened while the plaintiff was (1) “participating in the sport of skiing,” (2) in the designated skiing area. This does not mean that the ski area operator is immune to all tort claims that originate in the ski area. The Act imposes a number of duties on the ski area operator. If the operator breaches any of the duties it owes to skiers, assumption of risk cannot be used as a defense and the facility may be found liable for negligence.
Among the duties owed to skiers, the Act lists clearly and visibly marking snowmaking and maintenance equipment, entrances to slopes, difficulty level of each slope, hazards, and obstacles. Operators must also maintain one or more trail boards designating entrances to trails and slopes and whether those trails and slopes are open or closed. The Act also requires operators to conspicuously place warning signs designating maintenance activity on the trail boards and at the entrance of the trail or slope. Ski area operators are additionally required to have ski patrol personnel who are trained in first aid, winter rescue, toboggan handling, and evacuation of stalled aerial ski lifts. Finally, ski area operators must maintain ski lifts in safe working condition.
Under the Act, a person who is injured skiing from a collision with a tree or a visibly marked vehicle will be found to have assumed the risk of this kind of a collision. Similarly, an inexperienced skier who injures herself by going too fast on a slope above her experience level will also be found to have assumed the risk. However, assumption of risk will not be a valid defense for a ski area operator who failed to maintain a ski lift properly or failed to mark maintenance equipment on a slope.
For other dangerous activities where assumption of risk is not codified into New Mexico law, even if an individual signed a waiver, there is no assumption of risk when the defendant created unreasonably hazardous conditions. This will depend on the circumstances and the particular activity.
If you have suffered serious injuries as a result of unreasonable and unexpected hazards while engaged in a “dangerous” recreational activity, it is generally advisable to have an experienced personal injury attorney review your case.
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