There are three priorities in the case of a car accident, and if you keep them in order this bad situation can move forward as swiftly and simply as possible.
Be Conscientious.
Don’t leave, make sure all of the passengers and drivers are awake, conscious, and not seriously injured. Even if it was the other guy’s fault, if you are worrying about your paint job while his wife has serious injuries, things are going to go poorly for you in the court of public opinion. In this day and age, even if you don’t feel ethically compelled to be kind, you don’t want to end up as THAT guy on YouTube.
Call the Right People.
You should make two phone calls immediately, the police and your insurance. You may want an attorney, but this is not a call you would make immediately. The police and the insurance company will be the ones to handle the immediate aftermath. Do not talk about the incident with anyone but your insurer and the police at the scene. Do not speak with the other driver’s insurer, they should only contact you via your insurer or attorney.
Document Everything.
Take pictures, get a copy of the police report, ask questions of the people who witnessed the accident. You want all of the information to be gathered, but not clouded by early legal posturing. You cannot have too much information, and if a lawsuit comes about, this documentation can make all the difference.
Liability and Damages
Any time anyone sues anyone else for money, there are two things that must be proven for the person filing the lawsuit to be successful: liability and damages. This is true in the multi-billion dollar patent litigation between Samsung and Apple over the iPhone, and it is true in a relatively small fender-bender that results in a $5,000 verdict at arbitration. These two fundamental concepts of “liability” and “damages” are universal in this respect, even more so than the terms of art (or jargon) used to describe the person (or organization) filing the suit (the “plaintiff”) and the person (or organization) being sued (the “defendant”). Because of that universality, that is where this blog begins.
It should be clear that the person filing the lawsuit has to prove his case. That should go without saying. Courts generally do not order a person or company or other entity to turn over money until the person who wants to get paid has shown that he deserves to get paid. But, in a civil court in the United States, how does one demonstrate that they deserve to get paid? The answer is that one proves, you guessed it, “liability” and “damages.” Unless you can successfully prove both, you will not get paid. Whether you are a private citizen injured in a car accident, or a multi-national corporation claiming patent infringement, you must still establish liability and damages.
Having hammered home the fundamental nature of these concepts, let me take a moment to give some abbreviated definitions.
Liability is a moment, or perhaps several moments, in time when something happened. Someone did something or failed to do something. A decision was made regarding certain conduct. A department store left a dangerous substance on the floor. A truck driver fell asleep at the wheel. A tire manufacturer decided to cut corners in safety to save money. A surgeon forgot to remove a sponge from inside his patient. These are all examples of individuals or entities that breached their duties to others. They all failed to meet the standard that we, as a society, impose on ourselves and on professionals. This breach of societally imposed duties is the very thing that gives rise to liability. Someone failed to meet their obligations, whether to their customers, their patient, or society as a whole. When such a failure is shown, that is liability.
But liability – on its own, is not enough. Showing that someone made a mistake or failed to meet the standard to which society has agreed they should be held does not entitle anyone to money. Even in the extreme case where a surgeon has left a sponge inside the patient and has to operate a second time to remove the sponge. Such facts, extreme though they may sound, are not sufficient to entitle a plaintiff to payment. The plaintiff must still prove “damages.”
Damages, quite simply, are the consequences of “liability.” In assessing damages, juries are compelled to ask the questions like, “How was this person’s life effected by someone else’s mistake or bad conduct?” “What position would this person be in if there had been no bad conduct?” “What loss has resulted from the liable person’s actions or inaction?” Damages are sometimes proven as specific amounts of money – medical bills and lost wages are two examples.
There are, however, noneconomic damages that are often appropriate. Think of the example with the surgeon who has left the sponge in a patient. That person may have suffered a painful infection before the mistake was detected. There may be additional scarring as a result of a second surgery. These damages cannot be quantified in dollars and cents, yet the people who suffer such damages are entitled to compensation. The American system of civil justice only allows for payment of money damages, even in cases where no amount of money will properly compensate the aggrieved party for their loss. Money does not make scars go away or bring back loved ones who have been killed as a result of another’s mistake or bad judgment.
Thus, it is possible to have liability without damages. Imagine a trucker who falls asleep at the wheel, but doesn’t injure anyone. Clearly, the trucker has breached the duty imposed on him by society (as well as state law and a number of federal and state regulations). However, if there are no damages, there can be no lawsuit, even where the breach of duty is so egregious.
The opposite scenario is also true: sometimes there are damages, but no liability. This is true in a number of cases – members of a society can act with the requisite amount of care and people can still get hurt. A risky medical procedure that is otherwise necessary, may not be successful. A dangerous condition on the floor of a department store may have appeared and caused injury before anyone from the store could reasonably be expected to find the condition. Just because someone gets hurt does not automatically mean that they will be successful in a lawsuit.
The information here is grossly oversimplified and future entries will expand on these two fundamental ideas that are present in every case we handle. My hope is that, by beginning with this brief introduction to “liability” and “damages,” future discussions and entries will make more sense.
Pop Warner Lawsuits Are “Popping Up”
We are now starting to see lawsuits ‘pop up’ against Pop Warner football leagues. Pop Warner is a popular, national youth football league for children ages 15 and under. Parents can enroll their children in tackle programs as early as five years old. Though teams are regulated based on age and weight, full contact sports can be damaging to a young child’s developing body.
In recent years, many lawsuits have been filed regarding on-field injuries in football at the professional, college, and high school levels. Now, with the onset of lawsuits being filed against youth programs as a result of serious and permanent injury, it is important to determine if your child’s participation is worth the risk.
Consider this… a player begins playing tackle football at the age of five and continues this participation through adolescence. With age, the frequency and increasing force of these hits have the potential to cause irreparable damage and lasting, negative health effects. Teaching improper tackling techniques may lead to serious brain or spine injury. Inexperienced or untrained coaches may fail to recognize a child’s symptoms of on-field injury, such as a concussion, allowing the player to continue playing while in a fragile state.
If you suspect your child suffered permanent brain or spine damage due to an aspect of his participation in Pop Warner, call a qualified injury attorney like the Marrone Law Firm, LLC to schedule a free initial consultation.
A Guide to Legal Fees
We can’t live with them, and we can’t live without them!
Like any service provider, lawyers are compensated for the services they provide – legal representation or counsel. Legal fees apply unless an attorney is providing representation pro bono, or “for the public good” – without charge. There are a number of ways in which attorneys are compensated, including hourly fees, flat fees, retainer fees, and contingent fees. These fee agreements vary depending on the specific attorney or law firm providing representation and the type of work being done. We put together a breakdown of the four main types of legal fees and the various situations in which each may be applicable.
Hourly Fee
The most common type of legal fee is an hourly fee. A client is billed based on the number of hours devoted to their specific case. Hourly rates depend on a number of factors, such as geographic area, the type of legal matter, the role and experience level of the legal professional providing service.
The first aspect of hourly fees to consider is the tier system. Law firms with multiple attorneys and/or legal professionals, such as paralegals, tend to abide by a tier system when determining hourly rates. For instance, the owner or managing partner of a firm will charge a higher hourly rate than an associate attorney. The same applies to an associate versus a paralegal. Each member of a firm who works on a specific legal matter records their individual hours, valued at various rates, and a client is billed for those hours accordingly.
Rates can vary significantly depending on the specific attorney with whom you are working and the area in which you are being represented. For example, an attorney located in a small town hired to negotiate a minor real estate matter may charge an hourly rate that is significantly lower than a highly accomplished attorney based out of a metropolitan area who is hired to do the same type of work. Hourly fees can range anywhere from $100-$1,000+ per hour.
Flat Fee
A flat fee is a fee arrangement in which a lawyer charges a one-time fee for completing a job in its entirety. Lawyers may charge a flat fee when hired to complete routine matters, such as a will.
Retainer Fee
A retainer fee is considered an advanced payment for representation on a case. A retainer reserves a lawyer to handle your matter. The retainer fee is usually a set amount which is applied to the hours an attorney accrues working on your matter. If an attorney requires a $5,000 retainer fee, you will pay the $5,000 up front and it will be applied to the future hourly fees accrued.
Contingency Fee
Contingency fees allow attorneys to collect a percentage of the amount awarded to a client once the matter is resolved. Clients pay no upfront legal fees and are not required to pay legal fees if a case is lost, though certain expenses may still apply. Contingency fee arrangements are most commonly used in matters such as personal injury, and thus, are most commonly used at the Marrone Law Firm, LLC.
This fee arrangement differs from the others. There is a very high level of risk involved on the part of the attorney. With contingency, an attorney assumes the initial expenses of a case, such as hiring experts and requesting medical records, in order to develop a case for trial. Cases may accrue expenses into the thousands of dollars. In addition, there is no guarantee they will be compensated for their financial investment or the hours expended.
Contingency agreements alter the relationship between an attorney and the client, creating a unique bond. Attorney Michael Pomerantz likes contingency agreements because “they even the playing field”. “We are partners. If successful, we will soar together and we will crash and burn together if unsuccessful. The relationship no longer has an employer-employee structure, but rather a partnership,” says Pomerantz. The fact that there is now this partnership created, an attorney is more inclined to take on the risk of a case, because they have some skin in the game. It provides great incentive for the attorney to do their best possible work for a client, because if the case is lost, all of the time and money invested in the case is for naught, and if the case is won, both the client and the attorney benefit.
It is clear that fees vary for any given legal matter. Many factors determine which specific agreement is used and the terms of that agreement. During your initial consultation with an attorney or law firm you are considering hiring to represent you, discuss any legal fees you may be subject to during the course of your case. Prior to signing an agreement, ask questions. Make sure you have a strong understanding of the terms of the agreement and what it means for your case specifically. Once signed, you are expected to abide by the terms of the agreement.
Social Media and Your Lawsuit
Attorney Michael Pomerantz introduces the topic of social media and its potential impact on your civil lawsuit. His best advice: Shut down your social media accounts once you have a case and be honest with your attorney regarding anything online that may damage your credibility. (This is our first article addressing the topic of social media’s impact on lawsuits – keep your eyes open for more on the issue soon!)
If you or a loved one is the victim of a catastrophic injury that was someone else’s fault, the law may provide a remedy that allows you to seek just compensation. The larger the claim, the more vigorously the insurance company will defend, and, in many cases, that means initiating a smear campaign against the victim and family. The popularity of Facebook, Instagram, and other forms of social media provides the insurance companies with a treasure trove of data to use against you in your case. Clients should adopt the attitude that anything they say, and anything they have ever said, will be used against them. While the law may exclude some of the evidence mined from your various social media streams, this is still a developing area. The safe rule is, once you have a case, shut down all the social media. In a big case, the defendants will try to use it against you every time.
But what about statements you have already made on social media? Do not attempt to remove any posts you made before the incident giving rise to your claim, especially if it is a significant claim. So many cases turn on credibility, and juries favor plaintiffs they believe are truthful. Tweets, Facebook status, and other social media posts may be deleted by the user, but such deletions are no guarantee that the posts are erased from the computer servers maintained by Facebook, Twitter, Instagram and others.
Consider the following example: A client has a minor conviction for drug possession and then, years later, is involved in a catastrophic highway crash with a tractor-trailer. This crash renders the client, now in his late 30s, unable to work for the rest of his life. The client is aware that his social media streams contain recent tongue-in-cheek drug references that he is worried may lead others to believe he still uses drugs. He tells the attorney about the conviction, but mentions nothing about the social media posts, thinking that, since the statements were made in jest, there is no harm in just deleting them from his timeline. Because of the severity of the client’s injuries, the trucking company mounts a successful campaign to access the client’s timeline and discovers not only the drug references, but, more importantly, the attempt to delete the posts. The prior drug conviction is likely not admissible, but the social media posts and the attempted cover up are admissible because they create an issue of credibility. Usually, clients who lack credibility are not successful in their lawsuits.
The best action to take with regard to prior posts that may be damaging or embarrassing is to tell the attorney about them. Clients who try to deceive their attorneys invite disaster. It is always easier for an attorney to manage bad facts that he or she knows in advance, rather than to deal with a surprise learned for the first time during cross-examination of the plaintiff in front of a jury. By that time, the damage is done.
Social media is a developing issue in the legal field. Much of the case law is still being established and, therefore, we often find ourselves in unchartered territory. The best way to approach your case is to be honest and transparent with your attorney about your social media presence from the beginning.
There are many situations in which social media may play a role in a lawsuit. This is a developing topic, so we plan to keep you up to date regarding the issue- check back for more!
Tort Options: Full Tort vs. Limited Tort
One issue frequently discussed in our office and with our clients who have been involved in motor vehicle accidents is the issue of tort options. The value of your case may vary greatly depending on which tort option you select with your insurance carrier – full tort or limited tort.
Both full and limited tort options allow individuals who have sustained injuries in an automobile accident to bring a suit for unpaid medical bills, property damage and loss of income. Where the difference lies is when an injured party claims pain and suffering as part of his/her lawsuit.
Full tort coverage gives insureds the ability to sue in court for all damages, including pain and suffering in situations where the injured party is not at a fault and regardless of the extent of his/her injury.
Limited tort coverage “limits” the ability to sue for pain and suffering unless the injuries suffered are considered “serious injuries” as defined by the standard auto insurance policies in Pennsylvania. “Serious injury” is defined as death, significant deformity or permanent impairment of body function. Many times even permanent injuries are not considered, by insurance carriers, to be “serious injuries” if the consumer is not dead, disfigured or crippled. Oftentimes, insurance carriers will have a blanket policy to deny claims filed by an insured who has chosen the limited tort option.
If you have never suffered a serious injury, it is easy to underestimate the need for pain and suffering compensation. Pain and suffering includes physical, mental, and emotional injuries resulting from an accident. The value of pain and suffering varies in each case and depends on the specific injuries involved, though the amount recovered can be significant.
You cannot predict if you, or those covered under your insurance policy, will be involved in an accident. Full tort options tend to be more expensive than limited tort policies. However, in the event of a serious accident resulting in severe injury, a full tort option may be worth the extra investment.
DUI Consequences in New Jersey
Being arrested and charged with a DUI or Refusal to take a breath test in New Jersey is an unfortunate experience. The smartest thing you can do is to hire an experienced DUI attorney to represent you in your case. Though these types of offenses are not considered criminal in New Jersey, hefty consequences may still result. Attorney Christopher Marrone specializes in representing New Jersey clients in DUI-related matters. He outlines the most important things to do and questions to ask if you are charged with a DUI and the potential consequences per offense.
If you have the unfortunate experience of being arrested and charged with a DUI or Refusal to take the breath test in New Jersey, you should immediately consult with an experienced and aggressive DUI attorney to represent you. There are many attorneys who tout themselves as DUI attorneys. However, one must be sure that their choice of representation is carefully thought out. Make sure you meet with the attorney face to face and ask questions about his/her background and experience.
Also, make sure you inquire as to trial strategy. DUI’s and Refusals in New Jersey cannot be plea bargained as a matter of law. Your attorney will need to convince the Prosecutor that you have a very good chance of winning at trial before a Prosecutor will dismiss the charge on the record without the need for a trial. This convincing involves tactical and aggressive trial preparation and strategy. It is not enough to simply having relationships with Prosecutors. Your attorney needs to have a reputation for success using aggressive tactics. Some important questions to ask your attorney are:
1) How many DUI and Refusal cases have you had dismissed?
2) Do you use an expert in every case?
3) What defenses do you foresee based upon the facts of my case?
Remember, everything you say can and will be used against you at a trial. You have a Fifth Amendment privilege to remain silent, so exercise that right. All communications with attorneys are protected by attorney-client privilege.
Here is some positive news: A DUI and Refusal charge is not a criminal offense in New Jersey. Thus, if you are ultimately convicted of either, you will not have a criminal record. However, the negative consequences of a DUI or Refusal charge are significant. They include:
1st Offense
1st Offense: Your blood alcohol level is 0.08% but less than 0.10% or you are visibly under the influence of liquor.
Your fines can range anywhere from $250.00 to $400.00, and will include a DWI Surcharge of $100.00, a DDEF Surcharge of $100.00, assessments of $6.00, court costs of $33.00, a safe neighborhood fine (SNSF) of $75.00, and also a VCCO fine of $50.00.
Your stay in the Intoxicated Driving Resource Center (IDRC) will be for a period of 12 Hours.
Jail time for a period of up to 30 days,
Driver’s license suspension for a period of 3 months.
An Interlock for your principal vehicle is optional and can last as long as one to six months or even a year if required, and follows the period of your license’s suspension.
1st Offense: Your blood alcohol level is 0.10% or higher or you are visibly under theinfluence of drugs.
Your fines can range anywhere from $300.00 to $500.00, and will include a DWI Surcharge of $100.00, DDEF Surcharge of $100.00, assessments of $6.00, court costs of $33.00, a safe neighborhood fine (SNSF) of $75.00, and also a VCCO fine of $50.00.
Your stay in the Intoxicated Driving Resource Center (IDRC) will be for a period of 12 Hours.
Jail time for a period of up to 30 days,
Driver’s license suspension for a period of seven months to one year.
An Interlock for your principal vehicle is a mandatory six months to one year ifyour blood alcohol level was .15 or higher. This Interlock will also be required whileyour license is suspended as well as during any additional period. However, if yourblood alcohol level was less than .15 the Interlock will be optional and can rangeanywhere from six months to a year following the suspension of your license.
2nd Offense
2nd Offense: Your blood alcohol level is 0.08% or higher or you are visibly under the influence of liquor or drugs.
Your fines can range anywhere from $500.00 to $1,000.00 and will include a DWI Surcharge of $100.00, DDEF Surcharge of $100.00, assessments of $6.00, court costs of $33.00, a safe neighborhood fine (SNSF) of $75.00, and also a VCCO fine of $50.00.
Your stay in the Intoxicated Driving Resource Center (IDRC) will conform to theindividual treatment classification which is 48 hours.
Jail time will range from a minimum of 2 to 90 days, but the court may authorize two of these days through the IDRC.
Driver’s license suspension for a period of two years.
Community Service of 30 days will also be required during this time.
An Interlock for your principal vehicle will be required for a mandatory one to three year period during the time of your license’s suspension as well as the additionalperiod.
3rd Offense
3rd Offense: Your blood alcohol level is 0.08% or higher or you are visibly under the influence of liquor or drugs
Your fine will be $1,000.00 and will also include a DWI Surcharge of $100.00, DDEF Surcharge of $100.00, assessments of $6.00, court costs of $33.00, a safe neighborhood fine (SNSF) of $75.00, and also a VCCO fine of $50.00.
Your stay in the Intoxicated Driving Resource Center (IDRC) will conform to theindividual treatment classification.
Jail time is a mandatory period of 180 days, of which up to 90 of those days can beserved through the inpatient program the IDRC offers. *Please note that all of thejail time cannot be served through the IDRC, community service or work release.Therefore, jail time will be mandatory.*
Driver’s license suspension for a period of ten years,
Ignition Interlock for your principal vehicle will be a mandatory one to three years,be required during the license suspension as well as for any additional period.
A refusal to submit breath samples for chemical testing will also include the same fines and penalties as DWI violations, except jail time will not apply.
In addition to the penalties above, the New Jersey Motor Vehicle Commission will surcharge you $1,000 per year for three years. Plus, your insurance rates will increase tremendously. Moreover, if your license is suspended as a result of a DUI or Refusal charge, you cannot drive or you will face even greater penalties for driving while suspended. New Jersey does not offer a temporary license or restricted license while you are suspended. New Jersey also does not have a diversionary program for first offenders. Therefore, a DUI or Refusal conviction will have a huge economic effect on your life, in addition to the collateral consequences you face.
Do not assume anything! DUI’s and Refusals can be challenged and successfully dismissed at trial if an experienced and aggressive DUI attorney handles your case. Do not take legal advice from someone who is not an experienced DUI attorney.
Christopher Marrone, Esq.
532 Route 70 West
2nd Floor
Cherry Hill, NJ 08002
Snow-Related Car Accidents: Liability
Tomorrow we are expecting the biggest (and hopefully last) snowstorm of the winter. Heavy snowfall is predicted tonight through the Thursday commute, creating possibly unsafe driving conditions. Snow and ice covered roads often lead to serious car accidents. Many victims of these car accidents end up in our office to discuss the damages and liability of their cases.
Do dangerous, winter driving conditions affect liability in a car accident case?
No, winter storm road conditions do not affect liability in a car accident. The driver determined to be at fault for the accident is liable for damages despite weather conditions. Though you cannot control the weather, you are expected to have full control of your car at all times. Additionally, the issue of foreseeable risk comes into play. Foreseeability can be defined as reasonable anticipation of the possible results of an action or omission. This concept may be applied here in that a driver is able to reasonably anticipate the possibility of damages or injury as a result of driving on dangerous, snow and ice covered roads.
With that being said, it is important that drivers take proper precautions to avoid an accident when roads are covered with snow or ice. If possible, try to stay off of the road entirely. If you must drive, do so cautiously and maintain a safe following distance. A safe following distance is key because this will give you more reaction time if your vehicle or another vehicle begins to slide or lose control. In favorable conditions, the minimum following distance defined by the National Safety Council is ‘three seconds plus’. A snow or ice covered road requires drivers to extend this following distance significantly.
Unfavorable weather causing poor road conditions is not an adequate defense in a car accident case. The driver at fault is liable for damages – property damage and bodily injuries – regardless of the weather, due to foreseeability and a responsibility to maintain control of their vehicle. Remember that if you need to drive on snowy or icy roads, do so cautiously.
Dealing with a Broken Heart (Device)
Products liability matters involving medical devices seriously affect the consumers that rely heavily on them to maintain their health. In this article we address defective heart devices, medical device recalls, and the appropriate steps to take if your medical device is determined to be defective or a health risk.
Defective Defibrillators
Defibrillators are electronic medical devices that deliver an electric shock to the heart to restore a normal heartbeat. Defibrillators may be external or implanted and are used to treat patients experiencing dangerous arrhythmia or cardiac arrest. When an implantable or external defibrillator fails to function properly, there may be grave results. There have been significant recalls on defibrillators within the last decade by large manufacturers like Medtronic, St. Jude, and Philips.
Medical Device Recalls
Medical device recalls are issued if a device is found to be defective or a health risk. Most commonly, recalls are issued by the manufacturer upon learning their device violates a Food and Drug Administration law. The FDA will issue recalls if necessary, though it is a rare occurrence.
Recalls are categorized based on the severity of the recall being issued. The FDA classifies recalls by Class I, Class II, or Class III with Class I being the most hazardous form. Typically, recalls on heart devices are classified as Class I, due to the nature of such devices and the high risk of serious harm or death in the event of a defect. The FDA describes each class as follows:
Class I: Dangerous or defective products that predictably could cause serious health problems or death. Examples include: food found to contain botulinum toxin, food with undeclared allergens, a label mix-up on a lifesaving drug, or a defective artificial heart valve.
Class II: Products that might cause a temporary health problem, or pose only a slight threat of a serious nature. Example: a drug that is under-strength but that is not used to treat life-threatening situations.
Class III: Products that are unlikely to cause any adverse health reaction, but that violate FDA labeling or manufacturing laws. Examples include: a minor container defect and lack of English labeling in a retail food.
Recently Recalled Heart Devices
Nov 2014, updated Feb 2015 Heart Sync, Multi-function Defibrillation Electrodes Will Not Work with Philips FR3 and FRx AEDs
November 2014, updated January 2015 CONMED Corporation, PadPro and R2 Multi-Function Defibrillation Electrodes Will Not Work with Philips FR3 and FRx AEDs
September 2014, updated January 2015 Covidien, Medi-Trace Cadence and Kendall Defibrillation Electrodes – Electrodes will Not Work with Philips FR3 and FRx Automated External Defibrillators (AEDs)
March 2014 Thoratec Corporation, HeartMate II LVAS Pocket System Controller – Insufficient Labeling and Training for Patients Switched from the EPC Controller
December 2013 HeartWare, Inc., Heartware Ventricular Assist System – Locking Mechanism of Pump Driveline Connector May Fail to Engage
There are many potential courses of action when a heart device is recalled depending on why the recall was issued. The FDA offers a range of actions that may be considered recalls in the following list:
Inspecting the device for problems
Repairing the device
Adjusting settings on the device
Re-labeling the device
Destroying device
Notifying patients of a problem
Monitoring patients for health issues
Serious recalls that require a defibrillator to be removed or replaced tend to have the greatest impact on patients with implanted devices. Implanted devices require surgical removal, presenting additional risk. However, not all recalls result in the need for a device to be removed or replaced. Often times a device simply needs to be checked, adjusted, or monitored. It is best to discuss the best course of action with a doctor or specialist when a recall is issued. Every recall is different and may require a varied degree of action.
If a recalled heart device caused serious harm or death to you or someone you love, contact a products liability attorney to help you determine a legal course of action against the device manufacturer, if necessary.
Last season, over fifty-six million thrill-seekers visited various ski resorts located throughout the United States. Unfortunately, some of these visits resulted in serious injuries. Often, these injuries resulted from equipment failure, ski lift accidents, and dangerous collisions involving other individuals and objects. This article introduces the concept of assumption of risk and provides an overview of accidents experienced in the United States.
National Ski Areas Association
The National Ski Areas Association (NSAA) is a trade association that represents hundreds of winter resorts located throughout the United States. The NSAA, headquartered in New York, collects information each year about the ski industry. This information includes statistics about accidents and injuries that occurred on the ski resorts the NSAA represents.
The NSAA separates its data by sharing statistics per region. Of the fifty-six million visits it estimates throughout the United States, the Northeast represents the second most-visited region visited last season. Over thirteen million ski visits occurred in this region, making up almost a quarter of the total visits for the entire country. This regional information is put together to make up the NSAA’s annual report.
The NSAA breaks up its annual report by sharing information related to both “catastrophic injuries” and fatal accidents. The NSAA reports that the majority of these accidents occurred as a result of collisions. These collisions involved objects such as trees, equipment, other individuals, and impacts with the snow. In addition, the NSAA found that the majority of fatal accidents that occurred involved individuals who were reported as not wearing a helmet.
Catastrophic Injuries
Catastrophic injuries, a term the NSAA uses to refer to serious medical problems, includes life-altering head injuries, broken necks, broken backs, and paralysis. According to the NSAA, these serious accidents were on a steep decline from accidents that occurred during the previous season.
Fatal Accidents
According to the NSAA, thirty-two individuals died during their ski resort visit last season in the United States. Of these fatal accidents, the majority involved skiers. While these fatal accidents are quite rare, the NSAA reports that there was a small increase from fatal accidents during the previous season.
Assumption of Risk
When discussing activities that are inherently dangerous, such as skiing and snowboarding, the concept of assumption of risk must be addressed. Assumption of risk is a defense used frequently in personal injury and negligent cases. If a plaintiff knowingly enters into a potentially dangerous situation, it is often argued that the injured party assumes the risk of injury, absolving the defendant of liability. Skiing, snowboarding, and related actions like using a ski-lift, are risky by nature. Given the risky nature of skiing, snowboarding, and related actions like using a ski-lift, participants of these activities willingly accept the possibility of accident or injury. Therefore, assumption of risk releases mountain resorts of liability in many accident and injury cases, especially those involving ski-lifts or collisions.
Overall, the NSAA reports provide important information about being safe while skiing and snowboarding. Visits to winter resorts in the United States may result in serious injuries, but preventative measures (such as wearing protective gear) may be taken. It is important to take such precautions because in the event of accident or injury, most lawsuits against the resort will not stand up in court.
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