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Brown v. Stevens Pass9/20/1999
Lewis W. Brown filed a personal injury action against Stevens Pass, Inc., to recover damages for injuries he sustained in colliding with a fixed metal post embedded in concrete that supported a metal snow fence at the Stevens Pass ski resort. Relying on a provision in Washington's ski statute, RCW 70.117.020(8), and Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 501, 834 P.2d 6 (1992) the trial court dismissed Brown's complaint. We reverse and remand. No provision in RCW 70.117 per se immunizes ski resorts from liability when skiers collide with equipment placed on the mountain by the resort, and a rational trier of fact could reasonably conclude that the ski resort negligently failed to pad the fence posts, thereby enhancing Brown's risk of injury .
FACTS
On February 7, 1994, Lewis W. Brown was downhill skiing at the Stevens Pass ski resort. Brown, who describes himself as an "advanced" skier, was skiing down the South Divide Run, which Brown characterizes as "not steep" and "not difficult." Clerk's Papers at 13. Still, Brown explained that he lost control and collided with a snow fence:
{S}uddenly I lost an edge on the ice underneath the powder. And I did not fall down but I did change direction and had lost control . . . . I was trying to regain control . . . . I think I was in the process of falling. It was like I was trying to stop. I saw the fence and I thought, well, if I hit the fence, you know, I'll just, it will just catch me, and like you see in the Olympics, the guys hit the fence and they get up and they go. I remember that flashing through my mind as a possible scenario. But I was trying to stop. Id. at 14.
He maintains that his "speed was slow enough so that {he} thought contact with any of the types of fences {he} had seen at ski areas could not possibly result in any harm." Id. at 67. To his surprise, the fence was metal and its posts were embedded in concrete. The collision caused injuries to Brown's right femur and left tibia.
The snow fence was located along a windy ridge to keep snow on the South Divide Run. Without the fence, the wind would blow all the snow off the ridge, down to dirt and rocks. The South Divide Run provides access to skiing in Mill Valley on the back side of the mountain. Without the fence, the resort could not open Mill Valley to skiing. Due to the strength of the wind on the ridge, it was necessary to embed the fence posts in concrete indeed, the wind and the weight of the snow exert so much pressure on the fence that the metal posts bend under the pressure and must be replaced from time to time. Thus, temporary fencing or a more flexible fence would be destroyed and would not be strong enough to hold the snow on the run. The fence had been in place for ten years at the time of summary Judgement. During that time, over a million skiers had safely negotiated the run. Brown was the first skier to be injured by colliding with the fence.
On May 20, 1996, Brown filed a complaint for damages against Stevens Pass, Inc., alleging that the ski resort "failed to act with reasonable care and was negligent" for constructing a hazardous fence, failing to warn skiers of this hazard, and failing to protect skiers from it. Id. at 3-5. On February 20, 1998, Stevens Pass, Inc., moved for summary Judgement dismissal of Brown's complaint, contending that Stevens Pass "did not breach any duty owed to {Brown}." Id. at 27.
Relying on a provision in Washington's ski statute, RCW 70.117.020(8), and Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 501, 834 P.2d 6 (1992) ("While participants in sports are generally held to have impliedly assumed the risks inherent in the sp
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