Dakoulas v. Kruk

VERMONT SUPERIOR COURT CIVIL DIVISION
Windsor Unit Case No. 24-CV-00395
12 The Green
Woodstock VT 05091
802-457-2121
www.vermontjudiciary.org

Elizabeth Dakoulas
Plaintiff

v.

Yuriy Kruk
Defendant

Decision on Defendant’s Motion for Judgment on the Pleadings

At issue is whether plaintiff Elizabeth Dakoulas was injured “while participating in the sport of
skiing.” The answer determines whether plaintiff’s complaint was filed within the applicable
limitations period.
Vermont law provides that “[a]n action to recover for injuries sustained while participating in
the sport of skiing shall be commenced within one year after the cause of action accrues, and not
after.” 12 V.S.A. § 513. The statute is an industry-specific “curtailment” of the general statute of
limitations, which otherwise permits personal-injury actions to brought within three years after the
cause of action accrues. 12 V.S.A. § 512; Marshall v. Town of Brattleboro, 121 Vt. 417, 419 (1960).
Because the skiing-specific statute is a curtailment of the general statute of limitations, and because the
skiing-specific statute limits the remedies available to a plaintiff, the statute receives a “strict
construction.”1 Marshall, 121 Vt. at 419.
Here, plaintiff alleges in her complaint that she is employed by Killington Resort as an
“ambassador.” She asserts that, on a particular day in March 2021, she was assigned to “keep skiers
from entering an area where there had been a ski accident.” She further asserts that, while she was
performing this task, she tried to warn away defendant Yuriy Kruk, who was skiing towards the
accident site, but he lost control and crashed into plaintiff, causing her injuries. In the context of
defendant’s motion for judgment on the pleadings, the court assumes that these facts are true, and that
any contravening assertions made by defendant are false. Fercenia v. Guiduli, 2003 VT 50, ¶ 6, 175
Vt. 541 (mem.).

1 In other words, the scope of the statute is interpreted narrowly so as to ensure that its application affects only

those circumstances contemplated by the Legislature. For all complaints that fall within the scope of the statute, however,
the one-year statute of limitations controls instead of the three-year statute of limitations. “It is a legislative privilege to
enact special statutes of limitations when deemed appropriate. Where there is a conflict between a general statute of
limitations and a specific statute of limitations, the latter will prevail.” Aube v. O’Brien, 140 Vt. 1, 4 (1981) (internal
citations omitted).

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24-CV-00395 Elizabeth Dakoulas v. Yuriy Kruk
The caselaw interpreting the scope of the skiing statute is sparse. The statute does not extend to
every activity that is somehow related to skiing, because an early Vermont Supreme Court case held
that the statute does not apply to injuries that are suffered while a skier is using a rope tow or a chair
lift. Marshall, 121 Vt. at 419–20. The reasoning in the Marshall opinion was that chair lifts are used in
the summer by other resort patrons, and that injuries caused by use of a chair lift should not be subject
to two different statutes of limitation depending upon whether the patron was skiing or sightseeing at
the time. Id. The Marshall court thus held that the statute’s application is “restricted to activities on
skis where the skier undertakes to exercise independent control of [their] course, direction, speed, and
skiing method in the skiing area furnished.” Id. Two federal district-court cases have since described
the statute as applying to “downhill skiing accidents” and to “skier-upon-skier accidents that occur
while the plaintiff is engaged in the sport of skiing.”2 Riley v. Brook, 2015 WL 7572308 at *2 (D. Vt.
Nov. 24, 2015) (Reiss, J.); Weiner v. Sherburne Corp., 348 F.Supp. 797, 798 (D. Vt. 1972). *
At oral argument, the court questioned the parties regarding the scope of the statute. Both
parties agreed that the statute applies when one paying customer falls on their own while skiing, e.g.,
Weiner, 348 F.Supp. at 798, or when one paying customer crashes into another paying customer while
skiing, e.g., Riley, 2015 WL 7572308 at *3. However, the parties diverged on whether the statute
applies when a paying customer crashes into a lift attendant, or a ski patroller, or a medic who is
providing emergency first aid to an injured skier.
Defendant interprets the skiing statute as applying to anyone who was wearing skis at the time
they were injured, regardless of whether they are a paying customer, employee, or first-aid responder.
Defendant relies upon the aforementioned passage from the Marshall opinion in which the statute was
said to apply to “activities on skis.” 121 Vt. at 419. But the material fact in Marshall cannot have been
whether or not the plaintiff was wearing skis at the time of the injury, because a person wears skis
while using a rope tow or a chair lift in the winter, and the Marshall court held that the statute does not
apply to injuries sustained while a person is using a rope tow or a chair lift. Id.
The reasoning of Marshall suggests instead that the material fact is whether the injured person
was actively participating in the sport of downhill skiing at the time of the injury. 121 Vt. at 419. The
two federal court district opinions are consistent with this interpretation. Riley, 2015 WL 7572308 at
*3; Weiner, 348 F.Supp. at 798.
In the court’s view, ski patrollers and medics are not participating in the sport of skiing when
they provide first aid to injured skiers. A lift attendant is not “skiing” when they assist skiers in loading
onto the chair lift. And—at least if the allegations in the complaint are assumed to be true—plaintiff
was not “skiing” when she was instructed by a resort supervisor to go to the site of a ski accident and
“keep skiers from entering an area where there had been a ski accident.” At that moment, plaintiff was
directing other skiers away from an area where there had been an accident. Providing emergency
assistance to others is not a “sport.”

2 The federal district-court opinions are not binding upon this court, but have persuasive value. Rock v. Dep’t of

Taxes, 170 Vt. 1, 7–8 (1999).

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24-CV-00395 Elizabeth Dakoulas v. Yuriy Kruk
In reaching this conclusion, the court has taken as true the allegations in the complaint
regarding the nature of the role of "ambassadors," and whether they are employees of the resort.
Defendant has offered competing information and viewpoints about each of these topics. Given the
standard of review, however, the court must take the allegations in the complaint as true and disregard
defendant's contravening assertions. Fercenia, 2003 VT 50, 4 6.

For these reasons, defendant's motion for judgment on the pleadings is denied. The ruling
makes it unnecessary to address plaintiffs alternative arguments regarding whether any equitable
tolling doctrines applied to this case.

Electronically signed on Monday, December 23, 2024 pursuant to V.R.E.F. 9(d).

H. Dickson Corbett
Superior Court Judge

Vermont Superio: Court
Filed 12/2 24
that

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24-CV-00395 Elizabeth Dakoulas v. Yuriy Kruk