In this interlocutory appeal, remanded from the New Jersey Supreme Court, the court was asked to determine the novel question of whether the Ski Act, N.J.S.A. 5:13-1 to -11, applies to snow tubing. The court concluded the Legislature intended the Ski Act to apply to snow tubing activities, and plaintiff cannot demonstrate the operator of the snow tubing site had actual or constructive notice of a hazard he alleges caused his injuries. The court reversed the order denying defendant summary judgment.
Contrary to the trial court's ruling, the court determined the participant's ability to control the vehicle is not dispositive of whether the activity is included in the statute. Although portions of the Ski Act impose certain duties on skiers, such as the duty to control their speed and remain on designated trails, nothing in the statute limits the types of toboggans, sleds, or "similar vehicles" to those whose speed may be controlled.
The Ski Act bars any suit arising from the inherent risk of skiing or any related activity. Only when a plaintiff demonstrates that an operator has violated certain duties specifically enumerated in the Act may a suit proceed in spite of the bar. An operator's liability pursuant to N.J.S.A. 5:13-3(b)(3) is further circumscribed unless a plaintiff can show the operator knew or should have known of the enumerated violation and had a reasonable time to correct it. N.J.S.A. 5:13-3(d). Plaintiff was injured in a snow tubing accident where the snow tube he was riding struck a "bunched up" deceleration mat, launching him from the tube into the air. Plaintiff landed, suffering injury. After de novo review, the court concluded plaintiff had failed to present evidence that: the "bunched up" deceleration mat was an "obvious man-made hazard," requiring the operator to remove it, as required by the Ski Act.