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The ski industry has embraced the Internet, and it’s easy to see why. The Internet allows ski resorts to get their name and message in front of more eyeballs at a fraction of the cost of traditional media advertising. Resorts from Aspen, Killington and Heavenly to Nashoba Valley, Welch Village and Snow Creek have recognized the uses for a technologically-driven marketing and sales approach.

But what are the risks associated with this embrace of technology? What issues you should consider before posting information on your Website? What can you do to protect your ski resort from unwanted claims?

Let’s focus on the relationship of the Internet to operational concerns that could manifest themselves in general liability claims and lawsuits. We’ll leave firewalls, spam protection, encryption, data storage and other security issues to your IT professionals. But remember, as part of a true enterprise risk management program, it’s essential to address those issues as well.


Sales, Sales, Sales
Many resorts sell season passes over the Internet. The convenience to the customer is undisputed, as customers both near and far can purchase their passes at their leisure. From the resorts perspective, the “sales office” is open 24/7, and overhead is greatly reduced. Such sales are now ubiquitous. In fact, some politicians and lawmakers across the country are considering Internet sales as a new source for tax revenue. So as a method of generating revenue, Internet sales are widely accepted and should remain part of your operation.

Like the traditional paper transaction, though, have your online agreement drafted by an attorney, to make sure that you protect your resort from liability claims. In jurisdictions where pre-accident releases are valid, such as New Hampshire and Ohio, your online transaction should incorporate those “magic words.” If you operate in a state that does not recognize such releases, such as Vermont and New York, you should include assumption of risk language. And you should always include a forum selection clause—a statement that says a lawsuit can only be brought against you in your home state. A competent attorney can guide you.

But Internet releases/assumption of risk agreements pose additional concerns not typically found in paper transactions. First and foremost is the lack of a true signature. An “e-signature” will validate the commercial aspect of the sale, but how do prove your passholder “Jane Jones” read the release language in the agreement and clicked the “I Accept” box? Perhaps the “Jane Jones” who bought passes online for her husband and two kids is computer illiterate, and actually had her 14-year-old son purchase the passes using her credit card.

Your best solution may be the “belt and suspenders” approach—that is, have online purchasers sign the paper document when they pick up their passes. Since the commercial side of the transaction will be complete by that time, you can simplify the agreement so that it has a focused purpose—signing the pre-accident release or assumption of risk statement. In this manner, you will be able to prove that “Jane Jones” accepted the risks of the sport and agreed not to sue you. You should adopt this approach to all of your online ticket sales, including rental equipment.

If you opt to rely solely upon the “click wrap,” you have an obligation to store that information for retrieval at a later date. If pressed, your resort will have to produce the electronic document (“e-doc”) that was presented to the customer. Preserving e-docs is as vital to your operation as saving and storing their paper ancestors.


Tell It Like It Is
Another concern with the Internet is the accuracy of the information it contains. Marketing people know the benefits of having a vibrant Website, but is the information that you’re posting both fresh and accurate? For instance, suppose that you advertise online that you have three terrain parks, one of which is dedicated to beginners, and a family of day trippers visits so little Johnny can practice in the beginner park. And suppose that you are having a low snow year and your resort has built just one park with large features, and little Johnny gets hurt? What if your online snow conditions reports are not up to date, and someone gets hurt alleging poor trail maintenance? What if your website information is inconsistent with your printed materials?

These inaccuracies, in and of themselves, may not be enough to establish a liability claim against you. But they certainly will be exploited by a savvy plaintiff’s attorney. Even old Websites can be retrieved by talented computer technicians. So first be accurate, then be fresh.


Weddings and Other Transactions
Many resorts host weddings and receptions and other functions in the quest to generate more revenue. The market for this type of service is real and growing in many areas.

Often the customer is not local, and e-mail is the preferred method to work out the details. A written contract that spells out the details and that is signed by the customer is the best practice. However, when something goes wrong, the attorneys and the courts will look to the formation of the contract to understand the intent of the parties. That could include a series of e-mail exchanges between your banquet manager and the customer. Do you have a policy in place for saving and storing e-mail? Do you have the requisite computer back-up capabilities in the event your system crashes? If not, you should.

Recently, there was a claim involving a trip-and-fall at a wedding reception at a ski resort. The incident happened at night, so the critical issue was lighting. The bride and groom were from out of state. Through e-mail correspondence that the resort saved and reproduced, they were able to show that the bride and groom, in an effort to hold down expenses, opted not to pay for additional lighting. The saved e-mail correspondence was helpful in establishing the intent of the parties in booking the event.

Other commercial transactions could be subject to the same conditions. If you order a piece of equipment from a vendor’s Website or negotiate the purchase of a lift or groomer through a series of e-mails, you should save the correspondence in case you do not get what you bargained for.

Saving internal e-mails can be just as important. In the context of an employment discrimination case or a sexual harassment suit, for instance, an e-mail trail can be crucial. You should have a policy in place for retaining and storing e-mails and other electronically generated and stored documents.

To underscore the importance of e-mail storage, consider the case of Ronald Perelman v. Morgan Stanley. In this case alleging fraud, the trial court sanctioned Morgan Stanley for its repeated failure to produce e-mails and other electronically stored documents in discovery. With the benefit of the court’s sanction, the jury awarded Perelman a $1.45 billion verdict. The Federal Rules of Civil Procedure are expected to be amended in the near future to make “e-discovery” a routine step in all future litigation.


Blah, Blah, Blog
Web logs, or “blogs,” are used extensively by professionals and amateurs alike. Recently, an article appeared in these pages extolling the virtues of your own resort blog. You should exercise caution, however, in using these on-line discussions for several reasons. First, statements that you make on the blog may come back to hurt you later on. Remember, blogs can be accessed and read by anyone, even plaintiffs’ attorneys. Second, you can never be too sure who you are talking to. We have all read the stories about sexual predators who were caught when they went to meet their online “friend” who turned out to be a cop. Obviously, nobody from your resort should ever comment on ongoing litigation. Think of blogs as a way to get feedback you may not get otherwise, and not as a pulpit to speak to the masses.

The Internet is a great tool. But as with all tools, be sure that you get proper training and know its strengths and weaknesses.