092: Downhill Racer

Stella Case No. 092, Originally Published: 27 July 2005

In January 2003, Sarah Walker, 23, a ski instructor, was out on Loon Mountain in Lincoln, N.H. It was a cold day, and few people were on the slopes. She had an “expert” run virtually to herself.

She was racing down the hill practicing jumps when suddenly she saw someone ahead of her. “All I saw was somebody darting in front of me,” Walker said. She was unable to avoid a collision with Megan Lowry, 14, who was apparently skiing across the slope to reach a less expert-level run.

Neither Walker nor Lowry: just a nice solo ski shot. (Photo: miaalthoff via Pixabay)

Walker was injured in the crash: her front teeth were knocked out — through her lip — and she fractured her knee cap.

Off-season, Walker was an aspiring model. But her facial injury, the limp from her knee injury, and the inability to wear high heels, she says, ruined her modeling career and left her with “low self-esteem.” “I just don’t look the same,” she sobbed in court.

To help boost her esteem she filed a federal lawsuit in U.S. District Court in Boston against the 14-year-old girl and her parents, Daniel and Nancy Lowry, claiming negligence. She sought loss of wages for her aborted modeling career and compensation for her injuries. The suit says the girl should have seen Walker coming and yielded to her.

In response to the suit, the Lowrys said Walker was skiing too fast for conditions, and was unable to avoid the collision because she was in the middle of a jump — airborne — and thus out of control.

Megan Lowry, meanwhile, was knocked unconscious in the collision and can’t remember what happened. But, she testified, she’s an advanced skier and does look uphill before crossing a slope.

Her brother, Christopher, 12 at the time, was a witness to the accident. He says he was snowboarding behind his sister and was also about to cross, but by the time he looked Walker was visible — and was airborne. “She was going really fast,” he testified, and “then she landed and she crashed into my sister.” Walker says she was not airborne before the collision.

The bottom line, says Walker’s lawyer, Evan Slavitt, is “The responsibility was on Megan [Lowry] to avoid the collision.” No, responded the Lowry’s lawyer, Lawrence J. Kenney Jr. “The first rule for skiers is to maintain control. Sarah Walker … chose to go airborne and lost control,” and she is responsible for what happened.

There’s the case. How would YOU rule, as a juror in the Court of Public Opinion? You can assign all of the blame to either side, or assign blame on a percentage basis to both sides.

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Before the case went to the jury, Judge Robert Collings dismissed Lowry’s parents from the suit on the grounds that they were in fact on the slopes and were supervising their children. The jury thus only considered blame on Walker, the downhill racer, and Lowry, the 14-year-old girl who was crossing the slope.

After just two hours of deliberations, the jury held that Walker was 95 percent at fault, and Lowry only five percent. Further, it specifically awarded no damages to Walker. Jury foreman John Sheehan said he was surprised that Walker made a federal case out of the accident she had caused. “I think it was a matter of wrong place, wrong time,” he said.

The verdict “confirms what we knew all along,” said Lowry’s father, Daniel. Walker “was skiing recklessly that day. As much as you feel sorry for her injuries, they are of her own doing.”

Walker still didn’t get the message that the person racing downhill is responsible for avoiding collisions — a rule she should well know as a ski instructor. “I don’t think it was fair,” she said of the verdict.

No doubt young Megan said the same thing when she was sued over something that was not her fault. Her parents probably also felt that way when they were forced to hire a lawyer to defend their family from ruin.

Total time from incident to being tossed out of court: almost two and a half years.

Sources

  • “After Crash on Slope, Skiers Now Vie in Court”, Boston Globe, 29 June 2005.
  • “Ski Crash Model’s Own Fault, Jury Finds”, Boston Globe, 30 June 2005.

Case Status

Concluded with no reward given, as noted.

My 2021 Thoughts on the Case

Seems to me that Walker figured she could just let go because she was “virtually” by herself on the mountain. Unfortunately, that does not mean completely by herself.

Mr. Lowry said it best: “As much as you feel sorry for her injuries, they are of her own doing.” The same can’t be said of his daughter, who was injured but did not sue.

Letters

The case of the mother who bought several classic sugary breakfast cereals for her kids because the label said they had “less” sugar, but then sued when she learned that the sugar was replaced by other carbohydrates, brought some disagreement.

Bran in New York: “I agree with you that the plaintiff should have compared the [labels] herself. However, I was in a grocery store and saw a large pyramid of cereal boxes emblazoned ‘1/3 Less Sugar!’ and it was extremely obvious to me that the packaging was intended to deceive consumers into thinking this product was ‘better’. I’m sure they know perfectly well that few people read the nutrition labels, and even fewer of those that do understand what they’re reading. I consider myself reasonably smart, but I couldn’t find any difference in the two products, even though I was specifically looking for what it might be! I’m sure, in court, the cereal companies have fulfilled the letter of the law. But I’m glad this plaintiff has taken it upon herself to point out a misleading advertising practice.”

Bob in New Jersey: “I’ve got to disagree with you on this case. I find it akin to the tobacco companies reducing the tar and nicotine in cigarettes. The companies now must print a warning on their ads saying that they are no safer than regular ones. My granddaughter becomes hyperactive after consuming sugar. I buy her cereal with no or very little sugar. I might have bought one of the reduced sugar cereals if I hadn’t read of this case. You’re saying it’s the responsibility of the consumer to become a nutritional expert to be able to see through the advertising hype. I believe the outcome of this lawsuit should be to force the companies to state on their packages and in ads in a type size as large and as readable as the phrase ‘reduced sugar’, that there is no nutritional benefit from that. As for monetary damages, those should only cover the cost of legal expenses.”

One doesn’t have to be a nutritional expert to understand the labels, which are mandated to be in a particular format by the government — presumably so they can be reasonably easy to understand. Still, the next comment went even further.

Carey in Illinois: “While it does seem foolish to some extent, the sad fact is that far too many Americans are not savvy enough to read and understand ingredient labels and will be buying the cereal thinking it is more healthy, and the manufacturers know that darn well and are using the ignorance of the American people to make a few more bucks to pay bonuses to management and buy more corporate jets. Clearly you must be being paid off by the manufacturers to make fun of her. I may cancel my subscription, I certainly will if you ever do anything so poor as this again.”

Carey may have a point about Americans’ reasoning ability: look at his own thinking process. I “clearly” created the True Stella Awards and ran nearly a hundred cases that had nothing to do with cereal, and even went so far as to write a book about frivolous lawsuits (which again doesn’t mention cereals) with the sole purpose of gaining everyone’s trust so I could do one case about cereal so I could be be “paid off” by their manufacturers, despite the fact that such collusion would be a felony? Riiiiiight. The about page clearly asserts my independence. That no one can influence my coverage demonstrates that independence.

Despite those mostly rational arguments, there were far more on the other side.

James in California: “I think the woman should have been imprisoned for negligence in not taking the time to look at the trash she was feeding her children. Heavily sugared crap with a bit of sugar taken out is still crap. It’s like the guy suing because he ‘didn’t know’ that a steady diet of fast food would make him fat. All of us have a responsibility for our well being. In this modern world part of that involves reading labels and knowing relative health benefits. It’s not really complex, you can learn it in an afternoon and almost every college or university offers free nutrition seminars.”

Pat in Ontario, Canada: “If she really wants her kids to have nutritious meals, why doesn’t she get her lazy butt out of bed a half hour early and MAKE them breakfast? I don’t mean pour it out of a box, I mean cut up fruit, toast bread, scramble some eggs — you know, PREPARE and COOK real food. This woman, and most of North America, is terminally lazy — and it is becoming terminal in a very real sense since we are killing ourselves with chemicals and cholesterol.”

And sugar and other carbs!

Mary in Alabama: “What type of ignoramus would actually think that ‘less sugar’ = ‘healthy’? She should get off her arse and cook. Scrambled egg with buttered white toast would be better than pre-manufactured ANYTHING!”

Mark, in the same state as the plantiff: “As a consumer in the state of California that has bought cereal for my 11-year-old daughter, I hereby remove my name from any claims or lawsuit made on my behalf by Jennifer Hardee of San Diego. I fully accept responsibility for my laziness in supplying my daughter with a quick and easy breakfast that I as a half-intelligent adult fully know is not nutritious in any since of the word. As her parent, I am fully responsible for her well being and health. I do not blame Kraft foods, Kellogg or General Mills in any way for my poor choices in nutrition. I get furious when I read about lawsuits like this one. What scares and concerns me the most is the message and example this gives our children: that you no longer have to be responsible for your own actions.”

Andy in Massachusetts: “To me, the worst part of all these cases
aren’t the Jennifer Hardees of the world, it’s the lawyers who take these cases on. They’re like parents who give in to their child’s every whim. I don’t condone Ms. Hardee’s apparent laziness and greed, but I can’t believe she found a lawyer willing to take this case. I wonder how many she called.”

Jean, a lawyer in Quebec, Canada: “A similar case is in court right now in the province of Quebec. I believe a lady from Montreal is seeking from the Superior Court of Quebec permission to introduce a class action suit against Kellogg’s for Canadian customers, based on the U.S. case information.”

Gee: it doesn’t look like any of these letter writers works for a cereal company.

Referring to an earlier case about a fraternity member who sued his frat after becoming paralyzed when he jumped into a shallow wading pool, reader Paul in California wrote that the “more important lesson of this story: the U.S. lacks a decent system for providing medical and support services to the sick and injured. … It is a case of our stupid system working as it does to provide lifelong care for a teenager who was unlucky enough not survive the stupid escapades of his teenage years.” (For the record, the man was 18 at the time of his accident — a young but legal adult.) Several readers were upset with Paul’s idea.

Glenn in Alabama: “This line of thinking (entitlement) is the very problem TSA is fighting against. Paul feels I should pay (in taxes, so my government can help out) when someone else does something [which he admits is] ‘stupid’. At some point, we must take responsibility for our own actions. Paul joined a mailing list that points out the ludicrous lawsuits (almost all of which are motivated by greed and refusal to take ownership of one’s own actions), but provides a different solution: instead of suing, let the government pay (sounds like socialism to me). Augh!”

Jon in Washington: “Who is this socialist, and how did he become an economics professor in the United States? The collective population of the United States, in the form of a government handout, should be caring and providing for someone whose own actions land them in trouble? Whatever happened to personal responsibility? Whatever happened to being accountable for one’s own actions? This is why we have families and charities. That the frat boy doesn’t have the resources to care for himself after his own moronic actions left him paralyzed is neither my problem nor my neighbor’s problem, and I will challenge any efforts by anyone to take resources from me and my family in order to care for idiots. Perhaps Paul should be reading less Karl Marx and more Adam Smith.”

I see Paul’s letter as discussing the poor medical care situation in the U.S., which is absolutely true: it is quite bad in that we have the highest costs for medical care per capita of any rich country, and the worst outcomes. What I don’t see is him demanding, or even requesting, a socialist solution.

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7 Comments on “092: Downhill Racer

  1. I agree with all your commentators. I am a semi-retired attorney and I never did personal injury, by choice. I know the PI lawyers take cases hoping to get at least nuisance value. They hope to find some twisted reason why this person’s conduct is somehow outside of what you get for being stupid, and the other person’s conduct is somehow inside the realm of what they can be blamed for. When I moved to outside NYC (from a more humane area) the only available work was PI and I just couldn’t trade my values for money.

    There are real cases with real harm to innocent people by bad actors but they are not so numerous. And they cost millions in discovery and real legal time, so they seldom can get a lawyer’s attention (except some huge firm — good luck on that!, despite the publicity.) The stupid guy blaming everyone including their relatives take up all the space and air. And make good lawyers looking to protect the public from companies poisoning water or creating dangerous, untested products, pretty much disappear from public view.

    Won’t trade your values for money? My kind of lawyer!

    Reply
  2. In the skiing case, I don’t understand the 5% fault assessed to Lowry. Seems like it should have been 0%. Besides being a skier I’m also a soccer referee and the assessment is pretty much the same for both: if something goes wrong it is the initiator of the action that is at fault.

    Reply
  3. Maybe I’m remembering it wrong, but isn’t it the same way for auto accidents. The whole point of driving defensively is to avoid collisions. Yes, that asshole cut in front of you, but you hit him, so you’re at fault. Right?

    Absolutely not! Car crashes are investigated to find fault. One can certainly cut someone off and be blamed. It’s one of the reasons auto-recording “dashcams” are very popular: they provide evidence. -rc

    Reply
    • Another point of view. There was a comment early in the write up that the young girl was crossing the direction of travel in order to get to a trail more suited to her abilities. Doesn’t that mean she was in over her head and should not have been there? I’ve skied most of my life and the rule was always that you don’t cross the trail or you are at the mercy of people coming down it.

      Reply
  4. As a one-time skier, I remember one of the “rules of the road” I learned on my first ski trip– “You can’t change direction if you’re in the air”.

    You also go FASTER if your skis remain in contact with the snow. Going airborne feels cooler, and looks cooler, but it’s slower. “Practicing jumps” is largely for people doing stunts and for those trying to be one of the “cool kids” on the slopes.

    Now, young Ms. Lowry MAY have violated another of the “rules of the road”, “Always look uphill when crossing or merging”, but the primary fault is with the plaintiff, who by definition was out of control by going airborne. That could be the 5% fault assigned to her.

    So while I’m sympathetic to Ms. Walker for her injuries, based on the evidence I have to say, “Play stupid games, win stupid prizes”, and hope she eventually recovers from her physical and psychological injuries.

    Reply
  5. I’m not a skier, but it seems to me that the one going down the slope was doing what she was supposed to be doing, that is, going down the slope. The girl going across the slope was doing the equivalent of trying to run across a road that has traffic — traffic that does NOT expect to see someone crossing the road. It seems to me that the girl crossing the slope should have been watching uphill constantly for her own safety.

    Reply
  6. I am a skier, a pretty good one. The conduct of this ‘instructor’ is horrible.

    One of the first things noted is the Skier Code, possibly printed on the lift ticket and definitely signed off on a season pass, which includes:

    1. Always stay in control, and be able to stop or avoid other people or objects.
    2. People ahead of you have the right of way. It is your responsibility to avoid them.
    3. You must not stop where you obstruct a trail, or are not visible from above.
    4. Whenever starting downhill or merging into a trail, look uphill and yield to others.

    But the most damning item is that when one trail crosses the other, there is usually a ‘catwalk’ that is flat for the better conveyance of the cross-slope skiers: this usually means that there are jumps on either side of the catwalk, which are attractive to daredevils (myself included). So the instructor possibly was jumping the catwalk, or worse: jumping into a catwalk.

    Now I could have gotten this wrong: I have seen less capable people get on an expert slope and the way to get out is to use the whole trail to ‘traverse’ so that they’re not taking the steepness head-on: a traversing skier is easily visible, and I as an expert can immediately identify this person and stay clear or take other evasive actions.

    Had there been a rock or pole or wild animal at the same location as the child would not have changed the outcome that the ‘instructor’ would have hit it.

    Dismissed with prejudice.

    Reply

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