I’m Kanukistani. Our personal injury damage awards tend to be different from those in the USA, so I really have no idea what the poor bastard would get in the U.S.A. Up here, the damage award would be minimal, if any at all. If on for the plaintiff, I would let the psychological damages ripen before commencing an action. If on for the defendant, I’d try to comp the fellow (if a local, a free family season’s pass; if come from away, a week long family vacation), or toss him a couple of grand to get him to go away. As to why? Here goes:
First, there would be the question of whether or not the waiver would protect Vail. Up here, a sports waiver will typically protect against negligence, but not against gross negligence. I think that the liftie was negligent, but there are not enough facts known at this time to indicate whether or not the liftie was grossly negligent. (Also, remember that this was in Colorado, where there is a Passenger Safety Tramway Board, whose standards would be brought to bear on the matter, and the Ski Safety Act, that says that a violation of a PSTB rule or reg that causes injury or damage constitutes negligence for a civil action. I don’t know much about the PSTB’s regs and the SSA, but certainly anyone wanting to sue Vail would have to take a good hard look at them before diving in.) Finally, with tort law there is always the issue of remoteness/forseeability when it comes to really odd incidents. Skiers getting dragged or knocked when they fail to load properly is foreseeable, and skiers falling part way through the frame is foreseeable. I don’t know if dangling bare assed by one leg is foreseeable. Quite a sight, but not necessarily foreseeable.
Let’s start with the most obvious – a tort claim in negligence against Vail, with damages being based on the victim suffering nervous shock, be it nervous shock from the horror of spending so many minutes fearing death or paralysis from a headfirst fall, or nervous shock from profound embarrassment. Either way, the test in Canada for nervous shock is proof of psychological damage that was a reasonably foreseeable consequence of the negligent conduct, and that resulted in physical symptoms of a recognizable psychiatric illness (Vanek v. Great Atlantic & Pacific Co. of Canada, 1999, Ont. C.A.), or at least something darn close to a psychiatric illness, for the law in this area is still emerging. There are some cases where emotional scarring short of a recognizable psychiatric illness have been awarded. For example, a 13 year old girl was awarded $20,000 in damages for emotional scarring due to her seeing her parents killed in an accident (McDermott v. Ramadanovic Estate, 1988, B.C. S.C.). (I suppose if the child on the lift was emotionally scarred from looking at his dad’s taint for a few minutes, he might have a claim too.)
What remains clear here in Canada is that the damage must be more than mere emotional upset or anxiety (Peters –Brown v. Regina District Health Board, 1996, SK C.A.). That suggests that if the fellow was scared and humiliated for a little while, he would not get anything. If, however, due to the incident he were to develop mental health problems, then he would get something for damages.
Bottom line on a negligence claim (if it were in Canada)? If the fellow is the sort of person who would be emotionally damaged by the incident, then he should hold off and see what problems develop. If he is the sort of person who would laugh off the incident, then he should snap up whatever minimal compensation that Vail offers. (Hell, when was churned in a rapid for several minutes and eventually stripped naked, spat out, and towed to shore, and then later saw footage of the incident being played over and over on the big screen in a restaurant, with my friends all lining up to buy copies of the video, I thought it hilarious.)
Another approach would be to tack the emotional damages onto a breach of contract claim. Vail should have, would have, could have, etc., but ultimately breached the contract. Just like the negligence approach, however, there would be the question of just how badly the fellow was harmed. (And again, one would have to also consider any PSTB and SSA ramifications). Yes, damages for emotional upset can be tacked on to such a claim in Canada (have a look at wrongful dismissal matters for typical examples), but even then the specials will be whatever they will be, and the punitives may be big depending on the defendant’s behavior, but the generals for emotional suffering tend not to be much, particularly if they are primary head of damages. For example, a fellow who suffered emotional pain due to a cemetery losing his father’s ashes was awarded only $1,000 (Mason v. Westside Cemeteries Ltd., 1996, Ont. Gen. Div.).
As far as the liftie himself goes, I expect that since he was acting within his normal scope of duties, his liability would be taken by Vail, and if it were not, an action against him would be a waste of time since lifites are dirt poor and thus not worth suing.
As far as the manufacturer Poma goes, I really couldn’t venture a guess. I don’t even know if being up to snuff vis a vis the PSTB would be a consideration or not. I don’t know enough about product liability law (I have only worked on one product liability case in my entire life. The chairlift’s frame is like a ladder laying on the ground with five rungs, and four spaces between the rungs, the bench lays on the ladder, and can be raised so that the four people would have to sit on the spaces between the rungs if the liftie forgets to lower the seat (here is a pic of the underside of identical Poma quad – zoom in on the big spaces that the bench covers http://my.tbaytel.net/culpeperlaw/IMG00075.jpg ). Seems obviously defective to me, given that the spaces are big enough to fall through. The solution seems equally obvious to me – just put in some stringers. No one could fall through if the frame had some stringers filling the spaces, or if the primary support beam lay under the ladder the way old chair lifts were built (here’s a pic of a very old chairlift in my chalet – see how with the bench up it is still not possible to fall through – the entire chair might fall apart, but no one would fall through the spaces http://my.tbaytel.net/culpeperlaw/IMG00073.jpg ). In any event, even if one established that the design was defective, there still would be the problem of balancing the costs of the case against the size of the damages award.
Finally, up here in Canada we tend not to have many huge punitive damage awards that are made with the intention of getting an entire industry to shape up. Take for example the size of the award made for the lady who burned her lap with McDonald’s coffee. The punitives were way out of proportion compared to the actual injury that she suffered (albeit it was a hideous burn in a delicate area), because the punitives were awarded on the assumption that if she were burned, there were probably many other people who also were being burned, and therefore an award should be made that was high enough to make the industry change its ways. We tend not to have many awards like that here in Canada, so although it is possible that the fellow who fell though the lift at Vail might get a huge punitive damages award based on a Court wanting the ski industry to make safer lifts and operate them more safely, it is very unlikely that such an award would be made in Canada. It’s not that the laws in this area of punitive damages are very different between our nations; it is more that our Courts simply prefer not to hand out such massive awards.
