It was a few minutes after 2 p.m. March 6, 2009, when Alfred Rocks of Egg Harbor, N.J., and some friends set off on a run down Ovation, a double-black-diamond trail at Killington Ski Area.
Everyone understood that the skiing conditions were less than perfect that day. The temperature was above freezing. There had been occasional r*in. The resort had rated the snow on the Ovation run as “wet corn.”
Rocks, a skilled skier and a regular Killington customer, would tell resort officials later that at some point in the lower section of the trail he “skied over the lip, saw that it was bare, hit a rock and tumbled, hitting more rocks.”
Rocks, now 53, suffered multiple fractures to his right leg in the fall. He never quite recovered from the accident and, along with his wife, Eileen, sued the resort in U.S. District Court in 2010, alleging Killington failed to maintain Ovation in a “reasonably safe condition.”
The trial on Rocks’ claims began Friday and is expected to continue through this week.
In many ways, the Rocks case sounds like a typical ski liability lawsuit, but there’s a twist.
According to the Rocks’ court filings, he suffered additional injuries when the ski patrol toboggan he was strapped into for the ride to the bottom of the hill flipped over, along with the snowmobile that was pulling it.
“I yelled to him to slow down,” Rocks said in a portion of a pretrial deposition filed with the court. “He’s going too fast. My left side of my body is killing me, and the jarring was making it worse.”
When the toboggan began to flip, Rocks said, “it threw me this way onto the mountain. I hit, and then I bounced back up onto my side.” He later described what happened as a “face plant in the snow,” and an injury to his left knee.
Killington, in court documents, does not dispute the details of the toboggan accident but argues there is no proof that Rocks suffered an “independent injury” when the sled flipped over. The resort, in a pretrial motion, sought to prevent Rocks from bringing up the toboggan incident entirely, but that request was denied by Judge Christina Reiss.
As for the circumstances that led to Rocks’ fall on the trail, Killington contends that Rocks, an experienced skier, understood the risks inherent in the sport and was “solely responsible” for his injuries.
“With the prevailing weather conditions of above freezing temperatures, occasional r*in and the clear existence of numerous areas of thin cover, the plaintiff should have proceeded with greater caution and at a slower speed,” Killington liability expert Mark Petrozzi stated in a 2011 report he provided the resort.
Rocks and his wife did not respond to a telephone message seeking an interview last week, and their attorney, Thomas Bixby of Rutland, declined comment.
Killington’s chief spokeswoman, Sarah Thorson, and its attorney, John J. Zawistoski or Rutland, likewise chose not to respond to requests for comment.
Evan P. Banker, a Denver attorney whose law firm specializes in ski liability litigation, said every ski state has different rules when it comes to deciding between a resort’s obligation to provide safe trails and a skier’s responsibility to enjoy the sport safely.
“That’s what juries are for,” said Banker, who is not connected to the Killington case.
The toboggan incident, however, could pose a more serious problem for Killington, Banker said, assuming Rocks can prove he was injured when the toboggan flipped over.
“You’ve assumed the duty of reasonable care with regard to the rescue,” he said. “Once you’ve put him in the toboggan, you’ve taken on a responsibility.”