Skier is unable to hold ski area liable in Vermont for injuries received in an unknown way from an unknown person.

Second Circuit bends over backwards to assist pro se plaintiff who fails to prove his case.

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

State: Vermont, United States Court of Appeals for the Second Circuit

Plaintiff: Paul A. Gemmink,

Defendant: Jay Peak Inc.

Plaintiff Claims: negligently permitted dangerous jumps on its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side

Defendant Defenses: No Duty and No Negligence

Holding: For the Defendant

Year: 2015

This case is a rarity; it is a decision by the Second Circuit Court of Appeals. That court is one step below the US Supreme Court and one of the highest courts in the land. Consequently, to have any of the federal appellate courts issue an opinion about a skiing case is very rare. The Second Circuit Court of Appeals hears appeals from federal courts in New York, Connecticut, and Vermont.

The second issue making this case rare but sort of explains the reason why the Second Circuit heard the case, is the case is Pro Se. That means the Plaintiff was representing himself without an attorney. Pro Se cases are rarely successful and are very difficult for all the parties involved because of the procedural issues a litigant must follow to stay in court. Lawyers take a yearlong class on civil procedure in law school and work overtime not to miss procedural deadlines.

At the same time, judges bend over backwards and here the Second Circuit did too, to make sure the Pro Se litigant has the best opportunity to have his or her day in court.

Consequently, when the plaintiff, Gemmink, who was pro se lost at the trial level and successfully filed an appeal to the Second Circuit, the court based on the decision bent over backwards to respond to the plaintiff’s claims.

The plaintiff and his daughter were skiing at the defendant ski area Jay Peak. The plaintiff was following his daughter down the hill. The daughter reached the bottom of the hill and realized her father was not with her.

The plaintiff was found unconscious or regaining consciousness and combative up on the hill by the ski patrol. The plaintiff had no memory of what happened.

The plaintiff was found near trees. The daughter had seen a ski jump close to the location of where her father was found “leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink.” The plaintiff’s injuries were such that he attributed them to someone coming from the right and were consistent with the theory that someone going over the jump hit him.

Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore, at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.

The trial court dismissed the claims of the plaintiff for failing to establish that the defendant’s alleged negligence was the cause of his injuries. The plaintiff successfully filed this appealed to the Second Circuit Court of Appeals.

Analysis: making sense of the law based on these facts.

The court, as usual started its decision with the requirements for a party to defeat a motion for summary judgment.

Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.”

The court adopted the theory relied upon by the trial court, that the structure and maintenance of the alleged ski jump was sufficient to cause the injuries the plaintiff claimed based on the facts the plaintiff alleged. Again, this is rarely done when all parties are represented by attorneys. The attorney relying on this assumption would have to prove it using evidence.

The court then summarized its requirements in this case to determine whether the plaintiff presented enough evidence for a jury to rule in his favor.

The issue before us, then, is a not-infrequent one in tort cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.

Thus the issue was explained to require a showing of evidence sufficient to prove that the defendant was the reason why the plaintiff was injured, and that injury was based on a breach of duty to the plaintiff by the defendant ski area.

Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that, in fact, occurred?

Here the court obviously looked at the issue as to whether the plaintiff assumed the risk, not based on what the defendant had done or failed to do, but based on whether the sport or the actions of the plaintiff were the cause for his injuries.

In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Here the evidence was solely circumstantial. There was no video, no witnesses, and no pictures, nothing to assist the plaintiff in proving his case other than the plaintiff and his daughter’s opinion and the injuries which could be been occurred as the plaintiff surmised. When only circumstantial evidence is available at trial, then the burden to prove the facts falls on the party using the evidence, but that burden is greater because of the nature of the evidence.

First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis of finding negligence under the doctrine of res ipsa loquitur.

In this case, the only party with any knowledge or access to the information was the plaintiff, thus the plaintiff had the sole burden to prove his circumstantial evidence.

Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

The court then brought in another issue, whether the circumstantial evidence offered by the plaintiff under the law of the state that is being applied, Vermont, allows for an error in determining the value or likelihood of the evidence. Meaning if there is a gray area in valuing the evidence does state law fall one way or the other, in making the final determination on its value.

If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished.

The court then applied the three factors to this case. The first was whether there was a legal link between the maintenance of the ski jump and the injuries of the plaintiff. Maintenance in this case does not mean creation or grooming of the jump as in a terrain park, but whether the jump was allowed to exist by the defendant. The court found that any link was too tenuous to allow.

The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency.

This, the first argument, went in favor of the defendant. The court added in reaching this decision, that the plaintiff offered no additional evidence or expert witness to show a stronger link.

Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well-founded knowledge and can do no more than indulge in mere speculation.

The second issue, who had evidence on what happened, the court found neither side won or actually it was a neutral result based on an analysis. “The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.”

The third factor was interesting. Applying the test of how the state wanted the court to decide when faced with an issue that was “close call” or in a very small gray area. Here the court found that under Vermont law, the liability of a ski area is almost strict liability. That means liability with no room for error or limited if any defenses. Own a ski area and you own the safety of the people you invite to ski on the mountain.

We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

The court determined that Vermont follows the approach of symmetrical indifference. Vermont still allowed the defense of assumption of the risk for injuries caused by engaging in a sport. The court then found that Vermont prefers to err on the side of finding no causation. Meaning any cause of the injury must be proven not just alleged. If there was a gray area after analysis by the court, meaning if there was no clear decision, then Vermont law held there was not caused, thus no negligence.

By statute, although assumption of risk has generally been subsumed in comparative negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred.

The Vermont law concerning ski areas was proof of that issue. (See Vermont Skier Safety Act.)  Vermont law was interpreted by Vermont courts to offer a symmetrical approach how Vermont wants a court to consider the facts.

The court then applying the factors controlling how Vermont law was to be applied and found it could not find a link between the defendant ski area Jay Peak and the plaintiff’s injuries. There was no causation or link between the two that could be upheld legally.

Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

For negligence to exist, there must be a duty, a breach of that duty and injury and proximate causation. Here the court did not look at whether or not there was a duty, but just focused on whether there is a legal relationship, causation, between the injuries and anything the defendant had done.

The Second Circuit Court of Appeals upheld the trial court decision and affirmed the dismissal of the plaintiff’s case.

So Now What?

As you can tell the court jumped through narrow hoops to provide a way to say to the plaintiff you did not prove your case and based on what you have provided cannot prove your case. I seriously doubt the court has ever created such a difficult to write and understand, yet reasoned decision before.

When confronted with a pro se plaintiff, I constantly begged them to find an attorney. I wanted someone other than the opposing attorney to explain what was going on and why. I copied and sent the law, sent notices of deadlines and requirements all in an attempt to allow the court to rule in my favor. Not because of what I did, but because the opposing side had no case and the court did not need to extend the case any longer than necessary before ruling to make sure the opposing party received a fair and just hearing.

This decision also would have been much different in most other states that allow skiing. Vermont, the largest ski state in the East has always held that ski resorts are liable for the injuries of its patrons. (See The very first lawsuit against a ski area reviewing Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524) Because of Vermont’s unique view of the responsibility of a ski area, to dismiss a case against a ski resort creates a difficult decision when explaining a case clearly without any evidence of fault against the defendant ski area.

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One Comment on “Skier is unable to hold ski area liable in Vermont for injuries received in an unknown way from an unknown person.”

  1. Rick Certano says:

    Having worked in the ski industry for 50 years, 20 as GM and with many years as both a risk manager and having worked as an expert witness on numerous cases I would agree that the court finding was the only one possible. How could you hold the ski area responsible for something that “might” have happened. In addition you don’t discuss the “jump’! Who build it, how long was it there, was it obvious, was it on the groomed skiing surface, who built it? It is impossible for a ski area to control all of it’s terrain all of the time. That is why the signs putting the responsibility back on the patron to be aware and ski with care.


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