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BRAASCH v. VAIL ASSOCIATES

December 27, 1973

KATHRYN BRAASCH, PLAINTIFF,
v.
VAIL ASSOCIATES INC., D/B/A VAIL SKI SCHOOL, AND ZENITH SKI COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendants' motions to dismiss and quash service of process.

This is an action seeking to redress the alleged tortious conduct of the defendants. Jurisdiction is allegedly based on diversity of citizenship pursuant to 28 U.S.C. § 1332. The damages are alleged to exceed $10,000 exclusive of interest and costs.

The plaintiff, Kathryn Braasch, is a citizen of the State of Illinois. The defendant Vail Associates, Inc., d/b/a Vail Ski School ("Vail"), is a corporation incorporated under the laws of the State of Colorado and has its principal place of business in Colorado. The defendant Zenith Ski Company ("Zenith") is a corporation incorporated under the laws of the State of New York and has its principal place of business in that state.

The plaintiff, in her amended complaint, alleges, inter alia, the following facts:

  1.  On March 11, 1972 the defendant Vail was
      engaged in the skiing recreation and
      instruction business in Vail, Colorado. On
      and before March 11, 1972 the defendant Vail
      by and through its agents, servants and
      employees solicited and conducted business
      within the City of Chicago, Illinois and more
      particularly invited Kathryn Braasch and
      contracted with her to ski at Vail, Colorado.
      The defendant Vail held itself out as being
      able to teach people who did not ski how to
      ski safely through the use of its agents or
      servants who were held out to be expert
      instructors in skiing.
  3.  Each ski which Kathryn Braasch wore was
      equipped with a device called a binding,
      manufactured, designed and marketed by the
      defendant Zenith. The purpose of the binding
      was to attach the boot worn by the plaintiff
      to the ski and in the event of a fall the
      bindings were designed to release the boot
      from the ski so that the skier's leg is not
      put under undue pressure so as to cause
      injury. The bindings must be properly
      adjusted to the boot to operate as they are
      designed. Kathryn Braasch had attached the
      boots she was wearing to the bindings and
      skis in the presence of the expert
      instructor.
  4.  After the expert instructor assured Kathryn
      Braasch that she was experienced and
      knowledgeable enough to proceed down the
      slope to which he had brought her, Kathryn
      Braasch began to descend the slope. The
      instructor allowed Kathryn Braasch to travel
      away from him. Kathryn Braasch lost control
      of her descent and fell. The bindings failed
      to release her boot from the ski. The
      defendant Vail by and through its agents or
      servants was negligent in one or more of the
      following ways:
      a. negligently and carelessly failing to
      adjust the bindings attached to Kathryn
      Braasch's boots;
      b. negligently and carelessly allowing
      Kathryn Braasch to put on her own bindings
      when the instructor knew or should have known
      that Kathryn Braasch did not know how to
      properly adjust the bindings;
      c. negligently and carelessly failing to
      check said bindings to be certain that they
      were adjusted in a manner so that they would
      operate as designed;
      d. negligently and carelessly taking Kathryn
      Braasch to a ski slope which Kathryn Braasch
      was not experienced or knowledgeable enough
      to ski down safely;
      e. negligently and carelessly allowing
      Kathryn Braasch to ski down a slope which the
      instructor knew, or should have known, was
      too great a slope ...

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