Legal Watch: Vail in Hot Water Following Two Heavenly Ski Accidents

Posted By: The Ski Channel on March 7, 2012 12:36 am

This case has all the makings of a gripping Law and Order episode; relatable drama, an international visitor soon returning to her home country and a big time U.S. parent company.

Ski resort operators are watching closely as a citizen of Holland legally living in Nevada and her husband test the boundaries and scope of employee-employer liability in California. Elisabeth (“Elly”) Benschop and her husband, Calvin (“Cal”) Fitzgerald, filed suit against Heavenly Valley LP and its parent company, Vail Resorts, after Benschop was struck and injured on Heavenly Mountain by an off-duty employee on February 22, 2012. According to documents filed Thursday with U.S. District Court, the accident occurred when Andrea Ramos, a 20-year-old Brazilian snowboarder and employee of Heavenly Mountain Resort, crashed into Benschop. Benschop says Ramos failed to give her the right-of-way.

In their suit, Benschop and her husband allege that Vail’s policies contributed to the accident and thus, the resort company should be held liable for more than $75,000 in emergency and medical costs, as well as legal fees and expenses. Benschop was allegedly knocked unconscious by the collision and sustained head injuries from the incident requiring neurological care. According to her filing, “[Benschop] has sleep loss since the accident and [is] concerned about her future ability to enjoy the quality of life, such as skiing, sailing and snorkeling, which she participated in with her husband before the accident.”

Benschop claims that because Heavenly solicits foreign employees, offers free season ski passes for use when they’re off duty, discounted merchandise, food and beverage, and low-cost housing the company is responsible for its employees presence on the slopes. As stated in her filing, the foreign workers are paid “low wages, free season ski passes, discounted food and merchandise, helmets and medical insurance, and thus lured by Vail to travel to the United States and work cheaply at defendants’ ski resorts, like Heavenly.” But the foreign workers “are not provided with liability insurance, at least not by Vail or Heavenly, so after they crash into other resort guests, seriously injuring them, and return to their home countries, the injured guests have no recourse against the foreign employees who caused the injuries.” “There is virtually no chance that injured ski area guests can recover any damages from the foreign employees for injuries suffered,” the complaint states.

Benschop contends through her complaint that “Ramos was negligent per se and her employer, defendants Vail Resorts Inc. and/or Heavenly Valley … are vicariously liable for Ramos’ negligence, and directly liable due to their negligent instruction and training of Ramos, after having provided her with free snowboarding access to the resort.”

The complaint continues, “Vail’s practice at Heavenly Ski resort, is part of “a continuing pattern of skiing accidents at Heavenly, caused by Vail’s youthful foreign national employees, who are hired seasonally as allowed by the State Department’s J-1 Visa Program.”

Benschop’s accident occurred on the same slope that gave rise to a similar lawsuit in 2011. In that case, Kimberly Bland of Miami, Florida, sued Vail Resorts after she was seriously injured when a Heavenly Mountain Resort employee on a snowboard crashed into her while she was on Heavenly Mountain. Bland contended she was on the resort’s Nevada side trying to decide where to ski next when Heavenly lift operator Daniel Barreno struck her while riding his snowboard. The Reno Gazette-Journal reported Bland was knocked unconscious and suffered injuries to her head, neck, shoulder and back and that Bland sought at least $350,000 in damages, plus costs.

Unlike an accident that occurred in January 2011, where the Heavenly employee was on the clock when he ran into a skier, Ramos was off-duty when she collided with Benschop. According to Vail, Ramos was on her own time and therefore, is solely liable for the accident. Vail refused to acknowledge any responsibility for this accident stating to Elly’s husband Cal that this is a skier-to-skier’ accident and is no fault of Vail’s, the lawsuit states.

According to the complaint, “Vail and Heavenly are taking the position that Elly is on her own against Ms. Ramos, who is scheduled to return her home country on March 15, 2012, and that Elly should try and collect her thousands of dollars in ambulance, ER and CT scan billings, plus future treatment and disability costs from young Ms. Ramos personally! Vail refuses to acknowledge any responsibility for this accident, stating to Elly’s husband Cal that this is a ‘skier-to-skier’ accident and is no fault of Vail’s!” (Punctuation as in complaint.)

A spokesman for Vail Resorts said it is company policy not to comment on pending litigation.

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