Where there's smoke there's fire... More Slip & Fall Verdicts Ahead?

Utah courts expand slip & fall liability risk for land and business owners in Snow Country.

Utah courts expand slip & fall liability risk for land and business owners in Snow Country.

"Utah law has long protected landowners from slip-and-fall liability in situations where a danger should have been “open and obvious” to an injured party. But the Utah Court of Appeals rung in the New Year on January 3, 2014 with a new opinion holding that open and obvious snow and wintry conditions DO NOT protect an owner from liability for injuries if a plaintiff slips and falls on ice. In Candelaria v. CB Richard Ellis, et al., a three judge panel of the Utah Court of Appeals reversed a trial judge’s dismissal of a slip and fall suit and ordered the case sent to a jury because - get this - the ice on which the plaintiff slipped was hidden from view under snow.

In other states, it may be that “where there’s smoke there’s fire.”  But in Utah, where there’s snow a plaintiff need not necessarily expect there to be ice – and may have no legal responsibility to step carefully to protect himself. Owners now may have an affirmative duty to warn of or eliminate the risk in spite of visibly obvious wintry conditions."


The Jury Speaks

The Canyons wrongful death/avalanche trial wrapped up yesterday. After 53 minutes of deliberation, the jury decided unanimously in favor of the resort. Mr. Williams' death was a tragedy, and my heart goes out to his family. At the same time, what are the resorts to do? Permanently close terrain where avalanche risks cannot be eliminated completely? Somehow that seems a sad solution. Echoing my Park Record editorial of last week: skiing always has been and always will involve risks, despite the best efforts of good people to protect skiers. Twelve jurors appear to have seen it that way yesterday.

Congratulations to the attorneys at Strachan Strachan & Simon who successfully represented the resort.

Remember and Respect the Risks...

Fifty years ago, skiing in the U.S. was about to enter what is sometimes called its “golden age.” The sport appealed to an increasingly affluent and active post-war population because of the unique combination of glamour and danger that it offered. The fast and reckless style of Jean-Claude Killy was all the rage in the 1960's and "hot dogging" (a/k/a freestyle) was about to come into its own. Skiers almost took pride in the fact that they were 10 times more likely to break a leg than the average athlete. With its rope tows and its risks, it was not a sport for the faint of heart. And, everyone understood that.

Today, we have high-speed heated chairlifts, sophisticated binding technologies, composite safety helmets, Gore-Tex outer-wear, and even chemical hand-warmers. Terrain and conditions that used to be terrifying to all but the most seasoned daredevils are now considered fair game for almost anyone. The daredevils are still out there, but nowadays they suffer

through far less physical discomfort for their adrenaline rushes. And, they've been joined by everyone from the youngest ankle-biters to the oldest retirees. What once was forbidding alpine wilderness today can seem about as foreboding as the golf course at your country club.

That transformation is certainly more of a good thing than a bad one. The more kids and families venture up the mountain, and the longer skiing and snowboarding careers stretch into retirement, the brighter the future for winter sports. 

But as our shaped skis and snowboards transport us effortlessly across perfectly manicured slopes in modern comfort and style, it's becoming easier for us to forget a fundamentally important truth. Skiing and snowboarding are still risky sports. Gravity still pulls downward - hard. Snow is still cold, slippery and unpredictable. Mountain peaks are still high and steep. There is still danger.

A sad reminder of that reality is being re-lived this week in a courtroom on the edge of Park City.  On December 23, 2007, Jesse Williams lost his life in an avalanche while skiing in-bounds at the Canyons Ski Resort. The question of who, if anyone, is at fault is where it belongs - in the hands of the lawyers, judge and jurors inside the Summit County courthouse.  As for the rest of us, the trial offers an opportunity to remember that our gear may be shinier, our technique more refined, and our physical conditioning better than it was in the first "golden age." But our mountains are just as cold, steep, raw and risky as they have ever been.

Enjoy the coming ski and snowboard season. But be smart. Be alert. And, be prepared. Don't let the ease and comfort of 2013 lull you into forgetting the inescapable reality of yesterday, today and tomorrow: the fact that there always have been, and always will be, real risks inherent in sliding down snow-covered mountains.  Awareness of and respect for those risks are still the best protection we have up there.

Doubling Down on a Bad Idea

If you spend any time here, you know about the increasingly ugly legal battle between Talisker Corp. (and now Vail Resorts as well) over the threatened eviction of Park City Mountain Resort from several thousand acres of ski terrain - or alternatively the forced renegotiation of PCMR's long term ground leases at substantially increased rent.

Ever since the O.J. Simpson criminal trial unfolded during my first year of law school, I've tried not to prejudge high profile cases where I've not been a regular presence in the courtroom. I find it ironic that the indignation and even outrage by members of the general public over "unjust" rulings seems strongest among those with the least knowledge of the cases that so infuriate them. That's why I tend to keep a lid on my feelings about cases other than those I am litigating for my own clients.

But, it's been hard for me not to wonder what is really going on with the Talisker/Vail/PCMR litigation. My curiosity finally got the better of me, and I made some time recently to peruse the parties' filings with the Third District Court in Summit County (you can do the same - they are almost all public records). I was not comfortable with what I found. 

At the core of the dispute is Talisker's claim that PCMR failed to exercise a 50 year lease extension in writing by the contractual deadline of April 30, 2011, an allegation the trial court appears to have accepted as accurate at this point. My first reaction to that apparent oversight by a small army of very smart PCMR executives and lawyers was shock. I would have expected that day to be circled in red, highlighted and underlined on dozens of PCMR calendars in light of the value of the contract rights at stake. How could PCMR have missed such an important deadline? I wondered...

But as I read through the court papers, I began to become equally puzzled by the flip side of that same coin. Just as surely as PCMR appears to have missed that date, the court documents suggest that Talisker missed it as well. That's right. For eight months after the apparent default, Talisker continued to accept rent payments from PCMR and pursue business as usual with its neighbor/potential partner/competitor. But just as surely as the offices of PCMR are filled with smart people, so are those of Talisker. With the significance and value of the contract rights at stake, I began to wonder how Talisker could have failed to declare the supposed default as soon as its doors re-opened for business. How could the company have missed such a huge event for so long, not notifying PCMR until December of 2012 about such a glaring and high stakes failure?

The court documents don't provide an adequate answer to that question - yet. But as a lawyer who began doing deals and trying cases in this town more than 20 years ago, only one explanation makes any sense at all. It simply must be the case that as of May 1, 2011 - the day after the deadline - Talisker did not believe the lease to be in default any more than PCMR did. Talisker has never been a company to sleep on its rights. If it thinks it has a legal club, it swings it - usually fast and hard. It and its lawyers pride themselves on that reputation. If Talisker wasn't swinging something at PCMR immediately, it's because Talisker didn't think it had anything to swing.

A layperson might be surprised to hear a lawyer claim that two sophisticated parties could both walk past a critical, multi-million dollar deadline without recognizing that one of them had suddenly gained huge legal leverage over the other.  But when parties do business with each other over a course of decades, including ongoing negotiations over vitally important strategic and competitive issues, things are often said, representations are often made, actions are often taken that pull the attention of the parties away from otherwise red-letter dates on calendars. That's not to suggest that parties like these get careless, lazy or distracted. It is simply that core positions can shift and fundamental variables can change over time. The entire landscape can evolve, and parties can change their behavior in ways that lead reasonable, intelligent lawyers and business people to believe that once critical dates or events have been superseded and placed on a back-burner by all parties. Spoken word and courses of conduct can lead (or mislead) parties into believing that their counterparts on the other side of the table share their assessments. When the dust finally settles in this case, it will be stunning if that is not what we all discover to be the case here.

Every indication today is that neither PCMR nor Talisker was watching the clock or the fax machine at 11:59 p.m. on April 30, 2011. Their communications and behaviors had led them both to believe that it was just another Saturday night (yes, it was a weekend). Had PCMR thought otherwise, it would have delivered notice of renewal on Friday. Had Talisker thought otherwise, it would have delivered notice of default on Monday (maybe even Sunday).

If that is all true, then why do we now find ourselves in the mess we face today - with Talisker's successor, Vail Resorts, having just announced the stockpiling of another $5 million for the next 12 months of litigation (rather than for mountain improvements)? Again, having watched and participated in negotiations and disputes in this town for more than 20 years, only one answer makes any sense. Somehow the dynamics between Talisker and PCMR changed in the 8 months between that fateful Saturday night and just before Christmas in 2011. For some reason, Talisker decided in the interim that it needed (or wanted) a club to swing against PCMR, went looking for one, and found it circled in red on a calendar all sides had put in a drawer long ago.

With enormous checkbooks and herds of lawyers stampeding on both sides, I fear we will learn what happened and why Talisker needed (or wanted) such a club the hard way: that is, through years of additional courtroom drama and expense in which both sides struggle not only to prevail, but to reduce their adversaries to ashes.

The $5 million one year war chest referenced in Vail's recent SEC disclosures looks like doubling down, rather than re-thinking. Even if each side stops at that sum, and burns only  another $5 million each on litigation, that's $10 million in amenities and improvements up in smoke that could have been used to attract skiers and snowboarders to both mountains - not to mention to the restaurants, shops, hotels and other businesses surrounding them. It's never a good idea to double down on what was a bad idea in the first place.

Respect Them, and They Will Reward You.

The bigger the risk your employees are taking by showing up every day and pouring their blood, sweat and tears into your company, the more transparency you owe them. If you know you're close to the edge, they deserve to know too. Early at Attensity, we hit a difficult patch after the terrorist attacks of September 11. It wasn't clear whether we could make it through the end of the year, which was about how long we thought it would take to establish traction and obtain additional funding.

We gathered the entire staff, projected bank balances and burn rates on the whiteboard, and told them the only chance we thought we had without major layoffs was for the executive team to work for for free and the rest of the staff take a 40% pay cut for the next 6 months. We quickly learned what our team was made of. Not a single employee left voluntarily (we had to let 2 go for other reasons). Young employees with spouses and young children walked into my office and shut the door to tell me they had access to funds or lines of credit that they would like to make available to the company if it needed it.

If you've hired well, developed a strong culture, and earned the trust and respect of your staff, they will reward you for transparency, honesty and respecting them enough to tell them what's really going on. If you haven't done those things, transparency versus secrecy is probably irrelevant. You probably have not created something worth surviving, much less succeeding. That may sound naive or utopian. But that's a true story. If you give them a reason, good people will rise to the occasion. They will surprise you in positive ways when things get tough. That's the greatest reward an entrepreneur can reap.

An Ode to Elegance and Simplicity

Park City Municipal Golf Course Photo by Todd D. Wakefield

Park City Municipal Golf Course

Photo by Todd D. Wakefield

I hope you find our new website to be appealing. Key characteristics in our design philosophy for the website were elegance and simplicity. Those characteristics also are two of our key priorities in delivering legal services to clients. Whether it's the structure of a transaction or an argument in a legal brief, we strive for elegance and simplicity.

Elegance means that all issues are accounted for and addressed conclusively, and everything else is omitted. No loose ends, no rough edges, and no surplus. Elegance is impactful, but it's not brash, flashy or loud. It doesn't need to be. It simply works. An elegant deal serves all parties well over the long haul because everyone knows where they stand. An elegant argument prevails in the courtroom because it washes away doubt and skepticism.

Simplicity is often overlooked in the legal profession. But like elegance, simplicity works. Whatever you're proposing, if you can't get it across to a 12 year old, you've got more work to do. You have not achieved simplicity. Don't mistake simplicity for incompleteness or lack of sophistication.  Every transaction and every dispute can be distilled down to a bare essence that anyone can understand. If you don't know with clarity what your bare essence is, you don't fully understand what you're doing, and you risk making mistakes.

Together, elegance and simplicity have power. They help to guide and decide. They promote certainty. And certainty is the friend of human endeavor.