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In Skiing Hit-and-Run, Resort Off the Hook: 2nd Cir

By Jonathan R. Tung, Esq. | Last updated on

Yes, you can get in a hit-and-run on the ski slopes, but if you do, don't assume that the resort will be liable. The Second Circuit recently affirmed a district court's grant of summary judgment in favor of a ski resort whose negligence, plaintiff claimed, caused his injury.

The facts are interesting in this case, because it appears that plaintiff was blindsided and did not see the thing or person who collided with him, even for a moment.

Facts and Procedure

The plaintiff, Paul Gemmink, and his daughter Christine were skiing at Jay Peak ski resort in late February, 2011. While on the trails, Christine took one route and her father took another. When Christine looked over her shoulder, her father was not behind her. Later, a Jay Peak Ski patroller found Gemmink "combative and in obvious pain." He could not describe how he was injured. His daughter noticed a ski jump near where Gemmink was found. leading them to believe that another skier flew off the jump and collided with him, causing multiple skeletal injuries.

Gemmink brought his case pro se and claimed that Jay Peak's negligent maintenance of the trails caused his injuries. Jay Peak moved for summary judgment and it was granted. Gemmink appealed.

Circuit Opinion

The Second Circuit had to review the primary factual issue of the case, de novo: was Jay Peak's negligence the but-for cause of plaintiff's injury? Upon review of the facts, the Second Circuit decided "perhaps," but plaintiff failed to prove it.

Causation Factors

When looking at causation, the court declared that causation  must take into account two other factors: first, whether one party was in a better position than the other to explain what actually happened; and two, whether the applicable jurisdiction doctrine places liability on the defendant in a way that mirrors strict liability, or on the plaintiff in a way that mirrors "assumption of the risk."

Factor 1: So, What Actually Happened?

Even assuming that Jay Peak was negligent in maintaining the trails, the Second Circuit said, Gemmink offered scant evidence to let a reasonable jury to conclude it was more probable than otherwise that Jay Peak's conduct actually caused Gemmink's injury. In the court's opinion, the link between Gemmink's injury and Jay Peak's negligence was "too attenuated" and that the type of injury Gemmink suffered occurred too infrequently to infer causation. Gemmink was unable to even describe how he was hurt and the only physical evidence favored him in that it was consistent with a skier crashing into him. Thus, factor one favored Jay Peak.

Factor 2: Knowledge

Here, neither plaintiff nor defendant had access or knowledge as to what actually happened. For all the parties knew, either a human crashed into Gemmink, or a something else about that size. This favors no one.

Factor 3: Vermont Law

Under this factor, the Second looked at applicable Vermont law. It concluded that even looking at 12 V.S.A. sec. 1036, which strongly favors an "assumption of the risk" presumption, such application is typically limited to sporting events. The court concluded, looking at the totality of the statutes, that the intent of the Vermont legislature was to treat such circumstances as placing the liability of both defendant and plaintiff "symmetrically."

The Second Circuit assumed that Jay was negligent. However, the real issue is whether plaintiff offered enough evidence for a jury to find, more probably than not, that the resort's negligence was the actual cause of plaintiff's injury.


Causation questions are difficult because they oftentimes assume that but-for corresponds functionally for the mathematical precision of necessary conditions. Any number of things could have caused Gemmink's injury and his failure to keep his eyes open and watch a hit-and-run in progress likely spelled his loss at both levels of the courts.

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