Current Waiver Language on the Assumption of Risk Changing Plaintiffs’ Position for Recovery in Snow Sport Injury Cases.

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With the approach of the 2019-20 ski season, skiers are well advised to look closely at the language of liability waivers so as to understand what can be expected in the event of snow sport injury to you, skiers. As the language gets more specific, injured participants may be left to deal with the costs of their injuries on their own.

A San Francisco Chronicle op-ed piece from last ski season, written by a former New York Times correspondent, reports on the liability waiver he encountered at Vail Resorts’ Tahoe venue. The waiver releases Vail Resorts from any and all liability for injury by any cause and means, even if the injury is the result of fault or negligence on the part of the resort, its equipment or its employees.

(https://www.sfchronicle.com/opinion/openforum/article/The-new-ski-package-Surrender-your-rights-first-13410070.php)

The SFC piece tells the story of the 2011 injury to a woman on a lift at Keystone Mountain Resort in Colorado. The woman’s boot was wedged between snow and the chairlift, and though the operator slowed the lift, he did not stop it, which caused her femur to fracture.

In 2018, the skier filed an appeal in the US Court of Appeals for the 10th Circuit against Vail Summit Resorts, Inc. The court dismissed her claims of negligence, not because the resort was without fault, but because she had signed the waiver. In their final ruling, the court concluded, “…the waiver [she] signed before participating in her ski lesson, as well as the waiver contained on the back of her lift ticket, are enforceable and bar her claims against [Vail].”

Over the last fifty years, resolution of injury liability at resorts has ricocheted between the Assumption-of-Risk Doctrine (volenti non fit injuria – to a willing person, no injury is done) and the award of settlements large and small. As the language of waivers gets more specific and airtight, however, the award of damages may become a thing of the past, and all risks may lie only with the skiers.

In 2008, Hayes+Associates, Inc., was retained to analyze the biomechanical causation of a snowboarding injury at the Mountain Creek Resort in New Jersey. Five years earlier, a snowboarder fell and sustained a minor injury to his arm while snowboarding but continued to snowboard for several more runs. Later, as he boarded a ski lift, the operator let go of the lift, causing it to swing, and a vertical metal rail impacted him on the right elbow. He was diagnosed at the Emergency Room with a fractured elbow, which was treated surgically with a screw and wire fixation.

A month later, the snowboarder slipped and fell on ice, re-fracturing the compromised elbow. The screw was removed and a metal plate inserted, along with multiple screws. In September 2005, having fallen again some weeks before, the man revisited the doctor. His options at this point were reasonably good function and some discomfort for life, or a third surgery. Six months later, unwilling to live with pain and limitation, the snowboarder opted for surgery, which this time involved hardware removal and a bone grafting procedure. The post-operative diagnosis was that the elbow is and will remain compromised.

Seeking restitution, the man retained Mark W. Davis of Stark & Stark, PC, Lawrenceville, NJ (https://www.stark-stark.com). In late 2008, the firm retained a team from H+A to review the case, reconstruct conflicting accounts of how the injury occurred, and provide testimony on who was at fault. H+A Associate Erik D. Power, P.E., and CEO Wilson C. “Toby” Hayes, Ph.D., analyzed the case facts and the expert testimony of two MDs retained by the defense who claimed that it was the snowboarding fall before the ski lift impact that injured the plaintiff’s elbow.

Using the fundamental laws of physics, including calculations of the impact forces and established thresholds and mechanism for elbow injury, the H+A team determined that the original fall did not involve forces sufficient to fracture the elbow, but that the impact with the metal rail of the ski lift did and thus was the direct cause of the fracture.

Though many snow sport injury cases at the time were dismissed based on signed waivers releasing legal rights, the Plaintiff’s case against Mountain Creek Resort settled for an undisclosed amount before going to trial.

Hayes+Associates, Inc. (http://www.hayesassoc.com) is an expert witness and consulting firm based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.

Kristen! Swim, Bike, Run! H+A Associate, Kristen E. Lipscomb, PhD, takes the gold in The Best of the West Triathlon in Foster, OR

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When she’s not occupied analyzing the biomechanics of injury, conducting research on gait and spine biomechanics, guest lecturing in Forensic Engineering and Biomechanics, or caring for Trevor and Juniper, her four- and one-year old kids, H+A Biomechanical Engineer, Kristen Lipscomb, PhD, can sometimes be found racing triathlon. This September, Kristen took gold at the Best In The West Triathlon Festival in Foster, OR.

Gold in this case, as first Overall Female, comes in the form of a handmade horseshoe trophy and a home baked pie, apt rewards for this Western-themed rollick of a fun and energetic weekend. 

The Best In the West Triathlon Festival is the creation of Blair Bronson who, as a senior in need of an internship idea in Public Health Promotion and Behavior at OSU in 2011, decided to create something different from the "normal" public health path. He wanted to launch a business that would have a direct positive impact on the community and promote the active, healthy lifestyle that he—and now, his wife, Staci—embodies. 

The Best in the West Triathlon Festival is a fetching mix of all-ages athleticism and entertainment with a post-race BBQ, mixed team relays, games, camping, cold beer and cider, and giant cookies made from scratch.

Centered in Lewis Creek County Park, the races take athletes from back country roads to dense forests along Foster Lake and the Santiam River, through glorious views with total immersion in gorgeous Pacific Northwest nature. You can read more about the Festival, other races, and how to get involved as an athlete or volunteer here: https://www.bestinthewesttriathlon.com

As for Kristen, she has always been an athlete: in high school, she was involved in Soccer and Track & Field; in college, she played Ultimate Frisbee; and while earning her PhD, she got into running to stay fit and active, which eventually led to her first triathlon in 2013. In addition to shorter distance triathlons, and undeterred by a history of several sports injuries, Kristen has also completed an Ironman. If you know what that is, you’ll know enough to be impressed.  If you’re not quite sure what’s entailed, look it up and prepare to be inspired. Kristen enjoys training and racing triathlon and running events along with her husband, Ryan.

 Kristen’s Best in the West Olympic distance race involved a 0.9-mile swim, a 25-mile bike ride and a 6.2-mile run. And when it was all over, there was the victor Kristen, fit, healthy, smiling, and completely satisfied at the finish line.

 

At H+A, Kristen consults in the areas of injury biomechanics, orthopaedics, fall biomechanics and motor vehicle collision reconstruction. She is a Fully Accredited Traffic Accident Reconstructionist.

Hayes+Associates, Inc., Analysis of Deadly Amtrak Derailment Contributes to $7 Million Plaintiff Award

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On September 13, 2019, a Western District Court jury in Tacoma, WA, awarded $7 million in damages for the injuries and the pain and suffering of a man who was crushed and pinned in his truck by a derailed Amtrak railcar that plunged off an overpass onto Interstate 5 in December 2017. Testimony by Hayes+Associates, Inc. (H+A) CEO Wilson C. “Toby” Hayes, Ph.D. on the biomechanical mechanisms of the man’s injuries was part of the case presented to the jury.

On the morning of December 18, 2017, Blaine Wilmotte, age 24, was traveling southbound as a passenger in an F-150 truck when he heard a sudden terrible noise and saw a large shadow looming above him as the truck passed under the overpass. An Amtrak train, traveling 78 mph in a 30 mph zone, had derailed at a curve before the overpass, sending several cars crashing onto the highway below.

The train was on its first passenger run on a new stretch of rail line from Tacoma to Portland. Three people died as a result of the derailment and 60 were injured.

Amtrak admitted liability for the crash before trial. In its final report on the disaster, the National Transportation Safety Board (NTSB) cited inadequate engineer training on new territory and new equipment, and failure on the part of the Regional Transit Authority to provide an effective mitigation for the hazardous curve.

Wilmotte was represented jointly by the Luvera Law Firm, Seattle (www.luveralawfirm.com) and the Clifford Law Offices, Chicago (www.cliffordlaw.com). The firms subsequently retained Hayes+Associates, Inc. to conduct their evaluation of the biomechanics of Mr. Wilmotte’s injuries.

H+A Senior Associate Erik Power, PE, and Dr. Hayes reviewed medical records and radiographs, Amtrak files, EMS reports, depositions, and the NTSB report, along with the fundamental laws of physics to reconstruct the events of December 18, 2017.

On direct examination by Attorney Sean P. Driscoll of Clifford Law, Hayes conveyed to the jury the huge forces that produced Wilmotte’s injuries, leaving him trapped in the cab of his truck for over an hour while emergency responders struggled to free him.

In addition to Wilmotte’s $7 million award, his wife, Madison Wilmotte, who was pregnant at the time of the collision, was awarded $2 million for the impact on their marriage resulting from the train disaster.

“These people’s lives are forever changed due to the negligence of those in charge who simply ignored safety regulations,” Attorney Driscoll said after the jury granted the awards.

This was the first of a series of scheduled trials involving the 2017 Amtrak derailment scheduled over the next 18 months. Dozens of other plaintiffs are preparing to offer testimony.

Hayes+Associates, Inc., (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.

Hayes+Associates, Inc, Analysis of On the Job Injury Contributed to $910,000 Jury Verdict

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When an employee is injured on the job, both the employer and the injured party have a vested interest in establishing who was at fault. Scientifically reliable analysis and incident reconstruction can help establish the dynamics of injury and provide useful information on who was at fault.

In 2006, Donald Harrington, age 47, as an employee of Basic Fire Protection, was conducting service maintenance, re-installing sprinkler heads at Far West Fibers, a recycling processor plant, in Hillsboro, OR (currently known as Far West Recycling).

As he worked, Harrington fell through a hole in a catwalk which was covered by 15/32” plywood and concealed by a black rubber floor mat.  Harrington stepped with his left foot down onto the mat from a conveyor three feet above the catwalk. His right foot was following when the plywood broke and Harrington fell through the hole fifteen feet to the cement floor below.  He landed on his right leg.

Medical evaluation revealed a fracture/dislocation of Harrington’s right ankle.  Treatment involved the placement of five pins on the day of the injury and a second surgery about two weeks later. 

One year after the incident, Harrington was diagnosed with several permanent impairments resulting directly from the incident, including nerve damage, loss of collateral circulation to foot and ankle, and loss of full range of ankle motion.

Subsequently, Harrington sought representation by Ireland Costello, PC, Forest Grove, OR (now Ireland & Ireland, PC) (https://www.irelandpc.com)

The firm retained Hayes+Associates, Inc, to examine the scene and reconstruct the fall. An H+A team used Tekscan (tekscan.com) FMR-1 pressure sensitive shoe inserts to measure the peak forces on the foot when stepping down from a three-foot height.  In addition, basic materials science was used to predict the strength of the plywood. The team also reviewed Occupational Safety and Health Administration (OSHA) standards for load-carrying capacity of walkways and found that the plywood covering the hole did not meet OSHA requirements.  

The H+A report concluded that a steel plate over the hole would have prevented the fall and that Harrington’s injuries were the direct result of the substandard hole covering.

H+A CEO Wilson C. “Toby” Hayes testified to that effect in a trial in Washington County, Oregon. The jury subsequently found Far West Fibers 65% at fault and the Plaintiff 35% at fault.  Mr. Harrington was awarded $910,000 in damages.

Hayes+Associates, Inc. (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.

Hayes+Associates, Inc, Testimony Pivotal in Coos County, OR, Domestic Assault Conviction

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The guilty verdict in a trial of a man accused of assaulting his girlfriend with a deadly weapon was credited largely to biomechanics testimony by Wilson C. “Toby” Hayes, PhD, president of Hayes+Associates, Inc, of Corvallis.

Rich Conn of Coquille, OR, was charged with assaulting Anne Bollinger, his live-in partner, leaving her in a persistently vegetative state that will likely be permanent. The couple were living together when Bollinger sustained a skull fracture that left her with tetraplegia and no means of communicating. Conn claimed he did not know what happened to Bollinger, and assumed she might have fallen down the stairs at their home. Conn testified he did not know the extent of her injuries, and allowed her to remain on a couch for seven hours before calling for an ambulance. Responders stated they were immediately suspicious of Conn’s story when they arrived to find Bollinger in critical condition.

As a witness for the prosecution, led by R. Paul Frasier, Coos County District Attorney, Dr. Hayes testified that he and his associate, Ellen L. Lee, MS, found no indication in analyzing the case that a fall could have produced the injuries Bollinger sustained to the upper back of her skull. The depression there, a third of an inch deep, and the resulting extensive brain bleeding she experienced, could have been caused only by a blunt instrument, such as a heavy frying pan, Dr. Hayes said. An expert for the defense, Dr. Richard Reimann, attempted to refute evidence that Bollinger’s injuries could not have resulted from a fall down the stairs.

Frasier believed Dr. Hayes’ impressive credentials and his injury analysis based on physics and biomechanics was the state’s best shot at securing the jury’s guilty verdict. "Dr. Hayes came across very well,” Frasier said. “Basically, I think the jury needed to decide if they believed Dr. Hayes or not, and if they didn't, there was no case." Frasier focused on the defendant’s inconsistencies in describing what had happened, his delay in calling for medical assistance, and on Dr. Hayes’ testimony. The jury deliberated for less than an hour before returning the guilty verdict.

Hayes+Associates, Inc, (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.