Five States, Five Different Rules for Who Pays When a Ski Run Goes Wrong
Kenney Shelton Liptak Nowak LLP | Civil Litigation Update
Every major ski state has adopted some version of the same idea: skiing has inherent risks that no amount of care can eliminate, and the law should not treat every fall or collision as somebody's fault. How each state translates that idea into actual liability rules, however, varies considerably, and the differences matter both for a suit against a ski area operator and for a suit against the skier who caused the injury.
New York, Vermont, California, Utah, and Colorado each strike that balance differently, and a claim that survives in one jurisdiction can be dismissed as a matter of law in another on nearly identical facts.
The Basic Framework Differs by State
New York, Vermont, Utah, and Colorado all address ski liability through dedicated statutes. New York's Safety in Skiing Code, codified at General Obligations Law Article 18, declares that downhill skiing has inherent risks, including risks posed by terrain, weather, snow conditions, and other skiers, and sets out specific duties for both skiers and ski area operators.
Vermont's approach is broader and less detailed: the Vermont Sports Injury Statute, 12 V.S.A. § 1037, simply provides that a person who takes part in any sport accepts, as a matter of law, the dangers that are obvious and necessary to it, without cataloging specific risks the way New York's statute does.
Utah's Inherent Risks of Skiing Act, Utah Code § 78B-4-401 et seq., and Colorado's Ski Safety Act, C.R.S. § 33-44-101 et seq., both provide detailed lists of inherent risks and specific operator duties, closer in structure to New York's approach than to Vermont's.
California is the outlier. It has no comprehensive statewide ski safety statute. Liability in California rests almost entirely on the common law doctrine of primary assumption of risk established in Knight v. Jewett, under which a ski area operator or fellow skier owes no duty of care to protect a participant from risks inherent in the sport. Some California counties have local ordinances addressing skier conduct, but as the California Supreme Court made clear in the case discussed below, those ordinances generally do not create tort duties beyond what the common law already provides.
Suing the Ski Area Operator
All five states shield ski area operators from liability for injuries caused by risks genuinely inherent in the sport, but they diverge sharply on where that shield ends.
Utah's statute is the most protective of operators on its face. Utah Code § 78B-4-403 provides that a skier may not make any claim against or recover from a ski area operator for injury resulting from an inherent risk. Utah courts have nonetheless clarified that this bar is not absolute. In Rutherford v. Talisker Canyons Finance Co., the Utah Supreme Court held that the Act does not grant ski area operators blanket immunity from all negligence claims, and that operators still owe a duty of reasonable care with respect to risks that persist after that duty has been exercised.
Colorado's Ski Safety Act similarly bars claims against operators for inherent dangers and risks as statutorily defined, but it expressly carves out ski lift accidents from that protection. The statute states that nothing in it limits an operator's liability for injury caused by the operation of a passenger tramway, and Colorado courts have held that lift operators owe the highest degree of care commensurate with the practical operation of the lift.
New York's statute imposes specific affirmative duties on operators under General Obligations Law § 18-103, covering matters like trail marking, signage for trail difficulty, and marking of snowmaking and grooming equipment. A skier injured because an operator failed to meet one of these specific statutory duties can pursue a claim notwithstanding the general assumption of risk framework, as illustrated by New York cases finding assumption of risk inapplicable where a novice skier was directed onto terrain beyond her demonstrated ability.
Vermont's sports injury statute has, in practice, provided less protection to operators than its text might suggest. Commentators and courts alike have observed that the Vermont Supreme Court has construed the statute's "obvious and necessary" language narrowly, allowing recovery under ordinary negligence principles in circumstances that other states would treat as barred inherent risks. The result is that Vermont operators face a meaningfully higher litigation risk profile than their counterparts in New York, Utah, or Colorado, despite having a comparable statute on the books.
California's operators rely entirely on the Knight v. Jewett no-duty framework, which has generally proven protective in practice, particularly where the injury arises from terrain, snow conditions, or other skiers rather than from an operator's own affirmative conduct that increases risk beyond what is inherent in the sport.
Suing the Skier Who Caused the Injury
This is where the states split most sharply, and where practitioners are most likely to be surprised by an unfamiliar jurisdiction's rule.
New York and California both require a showing of reckless or intentional conduct before one skier can recover against another for a collision. New York courts applying the common law primary assumption of risk doctrine from Turcotte v. Fell, reinforced by the statutory recognition in General Obligations Law § 18-101 that collisions with other skiers are an inherent risk, have held that ordinary negligence between skiers is not actionable absent conduct so reckless as to fall outside the range of ordinary activity in the sport.
California reaches the same result through Cheong v. Antablin, where the California Supreme Court held that a skier owes a fellow skier a duty only to avoid intentional injury or reckless conduct, not a duty of ordinary care, even where a local county ordinance purported to impose specific skier conduct rules.
Colorado takes the opposite approach by statutory design. C.R.S. § 33-44-103(3.5) expressly states that the risk of a skier-skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another. Colorado skiers injured by another skier's negligence can therefore proceed under an ordinary negligence standard, without needing to prove recklessness, a meaningfully lower bar than New York or California.
Utah falls closer to Colorado than to New York or California, though through case law rather than an express statutory carve-out. The Utah Supreme Court in Donovan v. Sutton confirmed that a skier owes a duty to exercise reasonable care while skiing, while also holding that an inadvertent fall alone can never by itself establish negligence. That leaves Utah skiers facing an ordinary negligence standard for skier-on-skier claims, tempered by the practical reality that a plaintiff must still show the defendant's conduct fell below what a reasonably careful skier would have done.
Vermont's position is the least settled of the five states. Federal courts applying Vermont's sports injury statute have instructed juries that a skier accepts, as a matter of law, collisions that are an obvious and necessary danger of the sport, effectively applying a primary assumption of risk bar similar to New York and California. But because Vermont courts have construed what counts as "obvious and necessary" narrowly and on a fact-specific basis, the outcome in any given Vermont skier-on-skier case is considerably harder to predict at the pleading stage than in the other four states.
Damages Limitations
Colorado is alone in imposing a statutory damages cap. Under C.R.S. § 33-44-113, total recoverable damages from a ski area operator are capped at one million dollars, with noneconomic and derivative claims further capped at $250,000 within that total. The Colorado Supreme Court has held that this cap applies even in wrongful death actions and displaces the more generous exception otherwise available under Colorado's Wrongful Death Act for felonious killings, though it does not limit punitive or exemplary damages.
Notably, this cap applies only to claims against ski area operators, not to claims between skiers, and it does not apply to passenger tramway injuries, which fall outside the statute's inherent risk definition entirely. New York, Vermont, California, and Utah impose no comparable statutory damages cap specific to ski injury claims.
Practical Takeaways
Identify at the outset whether the claim runs against the ski area operator or against a fellow skier, since several of these states apply meaningfully different standards depending on which defendant is named. Colorado and Utah in particular treat operator liability and skier-to-skier liability as governed by different rules entirely.
In New York and California matters, focus discovery and motion practice on whether the defendant skier's conduct can be characterized as reckless or intentional, since ordinary carelessness will not support recovery in either state absent that showing.
In Colorado and Utah matters, do not assume a heightened standard applies to a skier-on-skier claim. Both states permit recovery on an ordinary negligence theory between skiers. However, Utah case law, in Donovan v. Sutton, confirms that an inadvertent fall alone is insufficient to establish a breach.
Where Colorado is involved, confirm whether the claim arises from general inherent risks (subject to the $1 million and $250,000 caps) or from a passenger tramway malfunction (excluded from the cap entirely), since this distinction can dramatically change exposure.
Treat Vermont cases with particular caution regarding early dispositive motions. Given the narrower construction Vermont courts have given the "obvious and necessary" standard compared to the other four states, summary judgment on assumption of risk grounds is less reliably available there than in New York, California, Utah, or Colorado.
Kenney Shelton Liptak Nowak LLP represents ski area operators, insurers, and individuals in personal injury litigation throughout New York and in coordination with regional counsel in other jurisdictions. For questions about how these principles may affect pending or future matters, contact our civil litigation team.
Tom Liptak, one of KSLN’s founding and managing partners, is an alpine, telemark and cross-country ski instructor, certified by the Professional Ski Instructors of America (PSIA).
