By: W.J. Kennedy
Consumer activist Ralph Nader recently castigated the American Association for Justice (AAJ), the national association of trial lawyers, for closing its annual convention to the press.
The convention is scheduled to take place in Boston from July 22-25 and will feature meetings on several areas of the law, including litigation over skiing and bicycling accidents.
“The American Bar Association is dominated by corporate lawyers, yet they open their annual meeting to the media, while American Association for Justice, which has a much better human interest and justice story to tell the American people, closes its annual meeting to the media,” Nader told the Corporate Crime Reporter.
“It doesn’t make sense.”
Spokesperson for the AAJ, Sarah Jones, said that most of the sessions over the three-day event are closed because there are discussions about active cases.
“We have to protect the confidentiality of members, attendees and clients,” Jones said.
The schedule for the event is listed on the AAJ website. Among the topics for discussion are: Mass Torts Best Practices CLE Program; Products Liability Section CLE Program; Aviation Law Section Meeting and Election; Trucking Litigation Group Meeting; Ski Area Litigation Group Meeting; and Bicycle Litigation Group Meeting.
For their parts, the ski resorts, many of which also offer mountain biking in the summer, say that over the years they have improved their defense against excessive litigation through state ski and safety laws and waivers.
“We still have a problem with the lawsuits but there has been a slight shift over the last couple of years from the ski areas to the skiers,” said Michael Berry, President, National Ski Areas Association (NSAA).
“There, some of the focus has turned to collisions between skiers. They’re going after homeowners’ insurance policies.”
NSAA’s Directory of Risk and Regulatory Affairs, David Byrd, said that state statutes and releases of liability and waivers have helped to bring back a sense of shared responsibility between skiers, bikers and the resorts.
“Most of the states with ski areas have specific ski safety statutes in place,” Byrd said. “Some state courts, like Vermont and New York, have watered them down considerably over the years from the original intent from the legislatures. But many are still quite strong.”
Wyoming was the latest state to enact a safety statute.
“The trial lawyers hate them,” Byrd continued. “They say with the laws in place the ski resorts lack the incentive to keep the areas safe, which is total nonsense. The last thing ski areas want is for one of their customers to go back home with an injury because of some safety measure we didn’t have in place.
“Our incentive is to keep our guests healthy, and coming back for more skiing and buying burgers and taking lessons.”
He added that the ski areas are heavily incentivized to keep injuries and claims low to avoid increases in their insurance premiums.
Byrd also said that a couple of ski areas have started offering discounts in season passes to customers who sign waivers for a discounted price, based on local state laws.
“Nearly everyone signs them for the lower price,” he said. “Typically the ones who don’t sign a waiver for the pass discount are the lawyers themselves.”
The ski industry and other recreation and amusement businesses at which customers and participants acknowledge an assumption of risk by signing a release of liability will be closely watching a case that the Pennsylvania Supreme Court has agreed to hear this fall - Valentino v. Philadelphia Triathlon.
The issue is over whether the widow of a man who drowned during the 2010 Philadelphia Triathlon can sue the event organizers, even though the man signed a waiver assuming all the risks.
The question before the court is whether “a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action.”
Last year, the Superior Court ruled that the waiver did in fact bind the man’s heirs and prevented his widow from bringing suit. That decision differed from a ruling a three-judge panel of the Superior Court made in 2015, which said the surviving spouse, who did not sign the waiver, was not bound by the release.
The complexion of the Pennsylvania Supreme Court changed considerably after the 2015 elections. Three Democrats, backed by the trial bar, swept the elections, giving Democrats a 5-2 majority on the court.