"The Alternative Ski Patrol"
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Ski Area Management (magazine)
January 1998
(Reproduced with permission of the copyright holder)
Ski Patrol and Area Management:
A Dilemma Still Seeking a Solution
A Staff Report-With Additional Input
Background-(Quoted from FaIl 1997 issue, Ski Patrol Magazine) "On August 6, a Southern California judge awarded $1.4 million in damages to a plaintiff who filed suit against the National Ski Patrol following the death of a family member at a ski area. NSP is appealing the decision of Orange County Superior Court Judge John M. Watson.
The lawsuit pertains to an incident in which a patrol candidate, John Kane, was killed during a ski training exercise in 1995 at Bear Mountain Ski Resort in California. Kane's family held the NSP liable for damages based on the fact that the individual supervising the training activities was an NSP member-even though the exercise was not an NSP-sanctioned activity."
In the aftermath of this award there has been renewed concern about the respective roles and responsibilities of National Ski Patrol, the individual areas, local patrol entities and individual patrollers. There is more than concern: there is some rancor, some name calling. There is a lot of emotion, a strong feeling of disenfranchisement and abandonment in some circles. There are equally strong feelings of dismay in other circles, especially in the NSP hierarchy, that all of this should be erupting when, they say, the facts are so abundantly clear and only the issues clouded by pockets of misunderstanding.
"l am very concerned that the 'volunteer' status of patrollers is in jeopardy particularly in light of the apparent trend by NSP National to distance itself from endorsing many of the traditional' activities and services provided by its members." - Don McKay, General Manager, Tyrol Basin, Wisc., and a patrol member.
"It is surprising to discover that there exists some lingering confusion.. even among some of the association's own members, regarding NSP's role. The association may find that the struggle to enlighten others in this respect may be one of the biggest challenges it has ever faced" John CIair, National Chairman, NSP
A Little History
Everyone pretty much agrees on the origins of the Patrol. The story of Minnie Dole and his role in starting the National Ski Patrol System in 1938, is well known and honored. As summarized by NSP: "About 10 years ago, the organization dropped the 'S' from its name. What seemed like a small change to some, in fact reflected a fundamental difference in the way the association began to operate. The 'new' NSP began to focus on developing the best possible educational programs and materials for its members and the unfolding 'mountain recreation industry' which now encompassed far more than skiing. In the age of 'managing risks,' a ski area operator must manage all aspects of his operation.
"This concept led to a joint Statement of Understanding between NSP and National Ski Areas Association (NSAA) which essentially makes patrol services a ski area responsibility and makes patrollers employees of the area or, in the case of volunteer patrollers, agents of resort management when providing patrol services and conducting non-NSP training."
A problem with this is that a substantial percentage of the Patrol infrastructure never fully bought into this concept. The old "system" was embedded in ski operations and it would take more than a Joint Statement of Understanding to change a whole culture.
And what a culture it is'. At its best, it embodies many of the original ideals, enjoys an extraordinary esprit de corps and, in many cases, is one of the most positive faces an area presents to its public; at its least helpful-and fortunately, rarely-it is a sort of insider's group, an exclusive fraternity with partying as a major function and free skiing its purpose.
The NSP in a September 15, 1997, memo to ski area managers has attempted to clarify NSP volunteer patrol relationships to their resorts by referring to, and interpreting, the 1993 "Joint Statement of Understanding" between NSP and NSAA. Unfor- tunately, neither the joint statement nor the NSP's interpretation fully specifies what training activities are under the direction and control of the local resort and what are the responsibilities of the NSP or its members.
It should be pointed out that the joint statement is not binding upon individual resorts or patrolmen, so whatever might be agreed upon at the national level of the two organizations, individual areas and their volunteer patrolmen still have the problems of sorting out exactly where their exposures lie, and then tailoring their relationships and protection to their individual needs within their state's legal atmospheres. Where clarification is most urgently needed is in responsibility for both on-and off-site selection and training programs-a mixed bag that includes recruitment, Outdoor Emergency Care courses and refreshers, NSP membership qualification, ski ability testing (and in many cases, instruction), toboggan handling, lift evacuation, avalanche control, accident investigation training, etc.
In any event, we recommend one of the two following courses of action for resorts and their volunteer patrols: (1) Local patrollers can form an independent, non-profit corporation that can negotiate the particulars of the relationship with its resort and buy its own insurance, including naming the resort as additionally insured, for those activities outside the agreed-upon responsibilities of the resort (which in the future are not likely to be covered by NSP's general liability insurance, if they ever were); or, (2) Have patrol activities and duties under the total control of the resort on a strictly individual patroller basis.
With regard to the first, the resort has to have an entity with which to "contract." The local area NSP "chapters" are very loosely organized, if at all. In our view, they are typically not in a position to adequately negotiate and establish which activities are under the local chapter's control and which are under the control of area management. As an independent, non-profit corporation, the local patrol should obtain insurance, including, if necessary, director's and officer's liability insurance to protect them from exposures incurred by the activities under their direction and control. The main goal would be to clarify and establish responsibilities, not necessarily for the resort to shed them. With this approach, for example, a local patrol could continue to have its own social activities, continue selecting, training and certifying its own people, who would then come under the resort's control during operations. Or, the local patrol might be responsible and insure only for its social, fund raising and related activities, leaving training, qualifying and operations to the resort
With the second option, if the local patrollers (remember, this is a decision for the individual patrollers and cannot be decided from above, either regionally or nationally) are unable or unwilling to incorporate or otherwise form a substantive organization that can contract with the resort, then the safest alternative for a volunteer patrol is to "dissolve," allowing the resort to establish volunteer patrolling on an individual basis, as is done with pro patrollers. Generally speaking, we believe that the esprit de corps and camaraderie which form so much a part of many local volunteer chapters will decline, or perhaps disappear entirely, if this approach is taken.
No matter which course of action is taken, we highly recommend individual releases for volunteer patrolmen. Such releases should also include the patrolman releasing other members of the patrol and its leadership from damages incurred in the course of patrolling activities, training and so forth.
The current liability exposures to which we are now belatedly paying attention must be met head on by individual resorts and patrolmen, as well as by the regional and national NSP organizations. Otherwise the mutually beneficial relationships we have traditionally enjoyed will be jeopardized.