Keely’s Law (Draft)

Initially we pursued a legislative change thinking that was what would be best.  However, we are now of the opinion that those that would best know how to keep patrons safe on a ski lift would be the industry itself.  Our focus has shifted to gaining the assistance of the ski industry and seeking a standards change, i.e., through ANSI B77.   For chronological organization of our efforts I include the proposed Bill we submitted to local politicians in 2011.
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The Requirement for Restraint Bars on Chairlifts in the State of California (Keely’s Law)

Existing law imposes regulations on certain facilities that are used for recreational activities including skateboard parks and public swimming pools.

The purpose of this bill is to provide reasonable safety standards for the design, construction and operation of passenger tramways used in skiing. Implementation of the bill will provide greater safety for the public at ski lifts in that the rule is abreast of current developments in the field.

This bill would set a deadline for California ski resorts to install restraint bars on all chairlifts. It would allow a tax credit for resort purchases made for installing, improving, or replacing restraint bars on all existing chairlifts.

In addition to the tax incentive this is a job creation bill due to a then prerequisite need for the manufacture and installation of such chairs in California’s mountain communities.

A third incentive is to insure the safety of California’s citizens and visitors participating in recreational activities with no means for directing the mode of transportation in performance of that activity. This bill would provide personal discretion for a ski resort patron to account for their own safety in utilization of an elevated ski lift.

The bill would specify that nothing in the above-described provisions shall be construed to change the existing assumption of risk doctrine as it applies to ski resorts. The people of California and specifically those utilizing ski resort chairlifts maintain sole discretion to use the restraint bars installed.

Existing Law:

Currently, there is no requirement in California for deployed safety bars on chair lifts. California Labor Code Sec. 7340 et. seq. California Code of Regulations Sec. 3150 et. seq. And see California Mountain Resort Safety Report, p. 17, www.snowsportsafetyfoundation.org. Cal- OSHA has jurisdiction over chairlifts as they are considered aerial passenger tramways. However, ski resorts are not deemed “common carriers” and have no duties as such according to California Public Utilities Code section 212(c).

Comments:

To add to Chapter 4 of the California Code of Regulations Subchapter 6.1 Article 1 Sec. 3150 regarding Passenger Tramway Safety Orders.

California can proudly claim some of America’s best downhill skiing resorts. However, as the snow sport industry and associated risks have changed over the years, California public policy has not kept pace. Most of California’s ski resorts are located on federal land, subjecting them to the jurisdiction of the U.S. Forest Service. The Service takes a “hands off” approach to safety regulation and rarely mandates rules or requires improvements be made (See SB 105 Analysis as prepared by Drew Liebert & Nicholas Lidtke/JUD.). Consequently, California snow sport facilities have significant latitude as to when, how and whether safety and accident prevention procedures and methods are employed. Additionally, all ski resorts in California enjoy liability protection under California’s “primary assumption of risk” doctrine which shifts liability from the resort to the skier for any injury suffered as a result of normal athletic activity. Furthermore, contractual waivers associated with lift ticket purchases give resorts added liability protection.

Unfortunately, numerous accidents occur throughout the United States every year at ski resorts where individuals, including minors, fall out of these lift chairs (a cursory search via Google or YouTube provides numerous examples). At most ski resorts, safety bars are not required, and the chairs are designed for adult frames not for minors (Patron Safety at California Snow Sport Facilities, p. 5, www.snowsportsafetyfoundation.org). Presently, a chairlift patron has no means to combat safety concerns of riding an elevated mode of transportation in inclement weather, congested conditions or of speed in the pursuit of a popular winter sport activity. Skiers should not have to bear risks they have no ability or right to control.

The ski resort landscape has been transformed by the introduction of high-capacity lifts and changes in skier demographics due to direct marketing and specialized venues encouraging bigger jumping, citizen racing, children’s discovery parks, etc. (Patron Safety at California Snow Sport Facilities, p. 1, www.snowsportsafetyfoundation.org). The goal for most large ski resorts is to attract as many customers as possible and move them up the mountain as quickly as possible. To this end, resorts have introduced high-speed lifts that carry up to six people per chair and move at 1,000 feet per minute contributing to the inevitable crowding on the slopes. It must be pointed out that thousands of people buy lift tickets every day throughout the season, thousands of people ride lifts, buy services and ski the trails (an all time industry record of 60.4 million skiers/snowboarders was set during the 2010-2011 season (Ski Industry Sets All Time Record: Tops 60 Million, Altschul, 7/15/2011, www.onthesnow.com). Each ticket sale may be, for some purposes, a purely private transaction. But when a substantial number of such sales take place as a result of the seller’s general invitation to the public to utilize the facilities and services, a legitimate public interest arises. In persuasion see Dalury v. S-K-I Ltd., 94-236, 164 Vt 329; 670 A.2d 795 (1995).

By requiring restraint bars on chairlifts this bill seeks to provide the ski resort patron the ability to make an individual choice that is presently nonexistent for utilization of safety measures but does not alter the liability protections ski resorts currently enjoy. In passing this bill, California will join a list of ski states already implementing mandatory installation of restraint bars on all chairlifts. Vermont1 and New York2 have already passed mandatory installation of safety bars on all chairlifts in their own states.

The application of the improved rules presents no hardship to the ski lift industry and should provide economic advantage to the public and the operators and owners of ski lifts by reducing expensive injuries.

Though compliance with the rules does impose some minimal expense (although not easily or readily quantifiable in terms of dollars) on the owners or operators of ski lifts, this expense is far outweighed by the positive results for the owners or operators of ski lifts and the public.

1Each chair shall be equipped with a restraint bar, which shall not yield to forward pressure applied by passenger(s). The passenger(s) must have the restraint bar fully closed except when they are embarking or disembarking the lift. Vermont Passenger Tramway Rules 1007.2.

2 Each chair shall be equipped with a restraining device referred to as a restraint bar that will not open under forward pressure (NYCRR Part 32, 4.34(d). And see Id. At 3.33(d)(4) (For aerial lifts operating primarily for foot passengers, each chair shall be equipped with a restraining device that will not operate under forward pressure.).

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