Ski Accident - resulting in traumatic brain injury
The 18-year old plaintiff was a resident of Japan and was attending private high school in Western, Massachusetts. In his senior year, he enrolled in a “for credit” physical education course entitled “Recreational Skiing” during which students skied at night. Plaintiff had never skied prior to enrolling in the course. As was discovered in the course of the lawsuit following the personal injury, the school provided transportation to and from a local ski area, but no provided no instruction, no equipment, and no guidance on which trails were safe for students to ski based upon their level of ability. Students were required to have ski equipment to participate in the course but were given no guidance on what equipment was safe for their level of ability. The plaintiff, knowing no better, borrowed skies from a friend which were designed for an expert skier. Students were advised, but not required, to wear a ski helmet to prevent head injuries. Plaintiff, like many of the students in the course did not wear a helmet. Although he requested that he be given lessons, none were provided. Prior to the date of the accident, the plaintiff skied approximately 11 times on the mountain as part of the course. Typically, he would ski with a classmate who was a superior skier. On the date of the incident, the plaintiff was skiing at night on borrowed expert skis on an intermediate trail, not wearing a helmet. The plaintiff skied off the trail into a tree, suffering a traumatic brain injury. There were no eyewitnesses to the accident.
The Massachusetts Charitable Immunity statute protected the school itself from liability beyond $20,000.00 for personal injury. The lawsuit seeking compensation for personal injury was filed against the school and its Director and Assistant Director of Physical Education, both of whom had responsibility for administration of the ski course and who were not protected by the charitable immunity statute.
In the lawsuit, it was discovered that instruction was mandatory in 15 of the 16 physical education courses offered by the school. This included courses such as golf, tennis and badminton. The only exception to the mandatory instruction rule was the ski course in which students received no instruction. The school’s Physical Education Director admitted that skiing put students at a higher level of risk for personal injury than any of the other courses which had a mandatory lesson rule.
The defendants and their attorney in the case maintained that plaintiff was 18-years old, was old enough to serve in the military and was old enough to decide whether or not to wear a helmet. Defendants’ attorney also argued that after skiing approximately 10 times on the mountain, plaintiff was proficient enough at skiing to be on an intermediate slope. The Defendants also argued that plaintiff knew or should have known the difference between a beginner slope and an intermediate slope, as the slopes were clearly marked with signs indicating the level of difficulty of each trail. Defendants also took the position that since no one witnessed the accident, it was not possible to say what caused the plaintiff to ski off the trail and into the tree. Defendants argued that even skiers who have taken lessons and who have proper ski equipment for their level of expertise ski off trails and suffer personal injuries, and that there was no way plaintiff could prove his personal injuries would have been avoided if he had received lessons and was wearing proper equipment. Finally, Defendant maintained that ski helmets were not required at any mountain in the country other than for small children in ski programs and that defendants’ helmet policy, even in the context of a physical education course, was reasonable to prevent personal injury.
Plaintiff countered that as this incident occurred during a physical education course the standard of care to prevent personal injury was the one that applied to physical education teachers in America. Plaintiff’s physical education expert testified in the case that to prevent personal injury these standards require teachers to assess students’ ability, to monitor their progress in the activity, to make sure that the equipment being used in the activity is appropriate for their level of expertise, to monitor students’ selection of terrain so that it is appropriate for their level of expertise, and, finally, to require that students wear helmets which can minimize injuries. The expert testified that defendants’ failure to adhere to the standard of care exposed the student to personal injury. Plaintiff’s attorney contended that if plaintiff had received proper instruction, was using proper equipment for his level of expertise, had been required to wear a helmet and was instructed on what trails were safe for his level of ability, this incident would probably not have occurred.
Defendants filed a motion for Summary Judgment, which plaintiff opposed. The case went to mediation at which time the case settled for $800,000.00.
Plaintiff attempted to go to college after his lengthy rehabilitation following his initial personal injuries. As a result of his head injury, his academic performance was significantly below what his high school academic achievement would have predicted and he had to drop out. Plaintiff is now in China undergoing therapy and treatment to improve his cognitive abilities.
Following the accident and all that was discovered in the course of the litigation by the plaintiff’s attorney, it is believed that the school implemented a mandatory lesson policy and discontinued the night skiing portion of the ski course.
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