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3 Vt. L. Rev. 129 (1978)
Assumption of Risk after Sunday v. Stratton Corporation: The Vermont Sports Injury Liability Statute and Injured Skiers

handle is hein.journals/vlr3 and id is 133 raw text is: ASSUMPTION OF RISK AFTER SUNDAY v. STRATTON CORPORATION: THE VERMONT SPORTS INJURY LIABILITY STATUTE AND INJURED SKIERS INTRODUCTION The cause of action in the case of Sunday v. Stratton Corp. arose when James Sunday, then a twenty-one year old student, was injured on February 7, 1975, while skiing at Stratton Mountain in Vermont. Sunday fell when his ski caught a piece of brush three to five feet from the edge of the trail. His head struck a rock, resulting in quadraplegic paralysis. Sunday brought suit, alleging that his injury resulted from Stratton Corporation's negligent failure to pro- perly maintain its trails. The jury determined that Stratton Corpo- ration had been negligent and returned a verdict in favor of plaintiff Sunday. Prior to the Sunday verdict, the defense of assumption of risk had been available to bar recovery by a skier injured as a result of a downhill skiing accident. In Sunday, however, the trial court refused to give a requested charge to the jury on the issue of assump- tion of risk. The court ruled that under Vermont's recently enacted comparative negligence statute,3 the defense of assumption of risk was no longer available, and that on the facts in Sunday, only con- 1. Sunday v. Stratton Corp., No. C83-75 CnC (Vt. Super. Ct. May 31, 1977), aff'd, No. 241-77 (Vt. Sup. Ct. June 6, 1978). For a discussion of the supreme court opinion released as this note went to press, see note 76 infra. 2. See Leopold v. Okemo Mountain, Inc., 420 F. Supp. 781, 787 (D. Vt. 1976); Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp. 786, 791 (D. Vt. 1951). 3. VT. STAT. ANN. tit. 12, § 1036 (1973). There are three basic types of comparative negligence statutes: pure, modified, and slight/gross. Under the pure formula, no amount of contributory negligence will be a total bar to the plaintiff's action. This formula has been criticized because recovery may be had against a defendant who was only slightly negligent in comparison to the negligence of the plaintiff. Under the modified formula, there are two subdivisions. Under one, the plaintiff may not recover if his negligence is equal to or greater than that of defendant; the other subdivision allows recovery where the negli- gence of the plaintiff is equal to or less than that of the defendant. Vermont is in this latter group, sometimes referred to as the fifty-one percent bar rule. In the slight/gross formula, the plaintiff may recover only if his negligence was slight and the defendant's gross by comparison. See Note, Comparative Negligence in Vermont: A Solution or a Problem, 40 ALB. L. REv. 777 (1976); Note, Colorado Comparative Negligence and Assumption of Risk, 46 U. COLO. L. REv. 509, 514-15 & nn. 19-22 (1975).

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