Summer 2015 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of June 1, 2015. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Company

3/2

Backcountry Skiing

AK

Chugach Mountains

Calving Glacier

28

M

 

http://rec-law.us/1CpcDtI

Chugach Powder Guides

5/23

Whitewater Rafting

CO

Clear Creek

Raft Flipped

47

F

M258.5

rec-law.us/1I3HWx7

All American Adventures

5/31

Whitewater Rafting

MT

Gallatin River

Raft Flipped

43

M

House Rock

rec-law.us/1GhQpwm

Geyser Whitewater Expedition

If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

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Montana Statutes Prohibits Use of a Release

TITLE 27  CIVIL LIABILITY, REMEDIES, AND LIMITATIONS

CHAPTER 1  AVAILABILITY OF REMEDIES — LIABILITY

PART 7  LIABILITY

Mont. Code Anno., § 27-1-701 (2012)

27-1-701  Liability for negligence as well as willful acts.

   Except as otherwise provided by law, each person is responsible not only for the results of the person’s willful acts but also for an injury occasioned to another by the person’s want of ordinary care or skill in the management of the person’s property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.

 

Title 28 Contracts and other Obligations

Chapter 2 Contracts
Part 7 Illegal Objects and Provisions

Mont. Code Anno., § 28-2-702, MCA (2017)

28-2-702  Contracts that violate policy of law — exemption from responsibility.

   All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

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Montana Ski Statues

TITLE 23  PARKS, RECREATION, SPORTS, AND GAMBLING

CHAPTER 2  RECREATION

PART 7  PASSENGER ROPEWAYS — SKI AREAS

Mont. Code Anno., § 23-2-701 (2012)

23-2-701  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-702  Definitions.

As used in this part, the following definitions apply:

(1)  “Freestyle terrain” means terrain parks and terrain features, including but not limited to jumps, rails, fun boxes, half-pipes, quarter-pipes, and freestyle bump terrain, and any other constructed features.

(2)  “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including:

(a)  changing weather conditions;

(b)  snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow;

(c)  avalanches, except on open, designated ski trails;

(d)  collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(e)  collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components;

(f)  variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications;

(g)  collisions with clearly visible or plainly marked equipment, including but not limited to lift equipment, snowmaking equipment, snow grooming equipment, trail maintenance equipment, and snowmobiles, whether or not the equipment is moving;

(h)  collisions with other skiers;

(i)  the failure of a skier to ski within that skier’s ability;

(j)  skiing in a closed area or skiing outside the ski area boundary as designated on the ski area trail map; and

(k)  restricted visibility caused by snow, wind, fog, sun, or darkness.

(3)  “Passenger” means any person who is being transported or conveyed by a passenger ropeway.

(4)  “Passenger ropeway” means a device used to transport passengers by means of an aerial tramway or lift, surface lift, surface conveyor, or surface tow.

(5)  “Ski area operator” or “operator” means a person, firm, or corporation and its agents and employees having operational and administrative responsibility for ski slopes and trails and improvements.

(6)  “Ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for skiing.

(7)  “Skier” means a person who is using any ski area facility for the purpose of skiing, including but not limited to ski slopes and trails.

(8)  “Skiing” means any activity, including an organized event, that involves sliding or jumping on snow or ice while using skis, a snowboard, or any other sliding device.

23-2-703  Ropeways not common carriers or public utilities.

Passenger ropeways may not be construed to be common carriers or public utilities for the purposes of regulation within the meaning of the laws of the state of Montana.

23-2-704  Unlawful to endanger life or cause damage.

(1)  It is unlawful for a passenger riding or using a passenger ropeway to endanger the life and safety of other persons or cause damage to passenger ropeway equipment.

(2)  A person who purposely or knowingly violates this section is guilty of a misdemeanor.

23-2-705  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-706  through 23-2-710 reserved.

23-2-711  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-712  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-713  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-714  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-715  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-716  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-717  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-718  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-719  and 23-2-720 reserved.

23-2-721  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-722  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-723  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-724  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-725  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-726  through 23-2-730 reserved.

23-2-731  Purpose.

The legislature finds that skiing is a major recreational sport and a major industry in the state and recognizes that among the attractions of the sport are the inherent dangers and risks of skiing. The state has a legitimate interest in maintaining the economic viability of the ski industry by discouraging claims based on damages resulting from the inherent dangers and risks of skiing, defining the inherent dangers and risks of skiing, and establishing the duties of skiers and ski area operators.

23-2-732  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-733  Duties of operator regarding ski areas.

(1)  Consistent with the duty of reasonable care owed by a ski area operator to a skier, a ski area operator shall:

(a)  mark all trail grooming vehicles by furnishing the vehicles with flashing or rotating lights that must be in operation whenever the vehicles are working or are in movement in the ski area;

(b)  mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails;

(c)  maintain one or more trail boards at prominent locations at each ski area displaying a map of that area’s network of ski slopes and trails, the boundaries of the ski area, and the relative degree of difficulty of the ski slopes and trails at that area;

(d)  post a notice requiring the use of ski-retention devices;

(e)  designate at the start of each day, by trail board or otherwise, which ski slopes and trails are open or closed and amend those designations as openings and closures occur during the day;

(f)  post in a conspicuous location the current skier responsibility code that is published by the national ski areas association;

(g)  post a copy of 23-2-736 in a conspicuous location; and

(h)  mark designated freestyle terrain with a symbol recognized by the national ski areas association.

(2)  Nothing in this part may be construed to impose any duty owed by a ski area operator to a trespasser or an unauthorized user of a ski area.

23-2-734  Duties of operator with respect to passenger ropeways.

A ski area operator shall construct, operate, maintain, and repair any passenger ropeway. An operator has the duty of taking responsible actions to properly construct, operate, maintain, and repair a passenger ropeway in accordance with current standards.

23-2-735  Duties of passenger.

A passenger may not:

(1)  board or disembark from a passenger ropeway except at an area designated for those purposes;

(2)  throw or expel any object from a passenger ropeway;

(3)  interfere with the running or operation of a passenger ropeway;

(4)  use a passenger ropeway unless the passenger has the ability to use it safely without any instruction on its use by the operator or requests and receives instruction before boarding;

(5)  embark on a passenger ropeway without the authority of the operator.

23-2-736  Duties of skier.

(1)  A skier has the duty to ski at all times in a manner that avoids injury to the skier and others and to be aware of the inherent dangers and risks of skiing.

(2)  A skier:

(a)  shall know the range of the skier’s ability and safely ski within the limits of that ability and the skier’s equipment so as to negotiate any section of terrain or ski slope and trail safely and without injury or damage. A skier shall know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.

(b)  shall maintain control of speed and course so as to prevent injury to the skier or others;

(c)  shall abide by the requirements of the skier responsibility code that is published by the national ski areas association and that is posted as provided in 23-2-733;

(d)  shall obey all posted or other warnings and instructions of the ski area operator; and

(e)  shall read the ski area trail map and must be aware of its contents.

(3)  A person may not:

(a)  place an object in the ski area or on the uphill track of a passenger ropeway that may cause a passenger or skier to fall;

(b)  cross the track of a passenger ropeway except at a designated and approved point; or

(c)  if involved in a skiing accident, depart from the scene of the accident without:

(i)  leaving personal identification; or

(ii)  notifying the proper authorities and obtaining assistance when the person knows that a person involved in the accident is in need of medical or other assistance.

(4)  A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing. Nothing in this part may be construed to limit a skier’s right to hold another skier legally accountable for damages caused by the other skier.

23-2-737  Repealed.

Sec. 5, Ch. 429, L. 1989.

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Equine laws stop suit against horse, outfitter still sued.

Those familiar with the legal system are more likely to sue, and physicians are very familiar with the system.

The plaintiff and her family went to Montana to vacation and rented horses from the defendant. During the ride, the plaintiff fell off her horse. The article describes numerous damages and loss of income claims before getting to the legal issues of the case. I suspect the plaintiff’s attorney is pushing this issue or even issued a press release to validate to the jury pool how valuable this claim is. (Jury Pool is the group of potential jurors who could be called for a trial.)

Before the trail ride the plaintiff told the guide she had previous experience. Allegedly, she told the guide before the start that her horse was difficult to control. During the ride, her horse “crowded” the horse in front of her. “Eventually, the horse in front of Plaskon [plaintiff] got tired of being crowded and kicked at her horse, which started bucking and threw her off.” The allegations went on to claim:

She claims the lodge, and outfitters were negligent and displayed “willful or wanton disregard” for her safety. Along with seeking actual damages for her medical costs and loss of income, [plaintiff] is asking to be awarded punitive damages.

The defense attorney responded to the reporter by stating that the plaintiff “…signed a waiver of liability and indemnity agreement prior to going on the horseback ride.”

The first problem not brought up in this article is Montana has two statutes that seem to prohibit the use of a release, Mont. Code Anno., § 27-1-701 Liability for negligence as well as willful acts. Which states:

Except as otherwise provided by law, each person is responsible not only for the results of the person’s willful acts but also for an injury occasioned to another by the person’s want of ordinary care or skill in the management of the person’s property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.

“Want of ordinary care or skill” is a term that could be closely defined as negligence.

And Mont. Code Anno., § 28-2-702 Contracts that violate policy of law — exemption from responsibility.

All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

This statute says that releases, or waivers, are void in Montana. (See States that do not Support the Use of a Release.) And although in most states, a definition of willful injury would mean greater than normal negligence, the statute later says negligence.

Trail_riding_pic_8

Montana does have an equine liability statute that may provide a defense in this case.

Where is this going? Its litigation so that it can go anywhere. Probably, the case will settle, but possibly we may see this posted here after a trial or hearing, and the case is appealed. Either way there was a probably a lack of understanding or too much involvement in the legal profession. (See People familiar with the legal system are more likely to sue) Physicians between training and experience are very familiar with the legal system and in some surveys is the most frequent group of plaintiffs in the US. Lawyers and people with lawyers in their family are also very likely to sue. Be aware when dealing with groups of people familiar with the legal system.

Furthermore, understand what state you are in and what laws may apply to your situation.

See Chico Hot Springs, outfitter sued by surgeon who fell from horse

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In this cycle race case, the release was void by state law, but could still be used to prove assumption of the risk.

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

At trial it is too late to find out that the release you had everyone sign has no value.

This is a motion hearing in Federal District Court for the great Western Stage Race held in Missoula. Montana by statute does not allow the use of a release. See States that do not Support the Use of a Release. The plaintiff was attempting to have two issues precluded from the trail:

·        The fact the defendant was a non-profit.

·        The fact the plaintiff signed  a release which is void under Montana’s law.

To do that, you file a motion in limine. A motion in limine argues before the judge that because of a statute or the laws of evidence something the other side is going to try to say or introduce as evidence should be excluded. See Why accident reports can come back to haunt youfor more on motions in limine.

The facts that gave rise to the case are the plaintiff was a competitor in the bicycle race. During the race, a pedestrian darted out in front of him and caused him to crash. He was claiming, “alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course.”

The first issue, the non-profit status of the defendant was quickly granted. Because most states have statutes, which state a non-profit is the same as a for-profit corporation, the issue of the defendant being a non-profit would only prejudice the jury.

The second issue, the release is of more interest. Pursuant to Montana’s law, a release is void and against public policy.

M.C.A. § 28-2-702  Contracts that violate policy of law — exemption from responsibility.

All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

So the release signed by the plaintiff in this case could not be used as a release. The plaintiff’s motion in limine was to exclude the release for any purpose; the jury would never know a release was signed.

So?

The court held the release could be used but only to the extent to show the portion of the release which showed that he was aware of the risks of the race.

The mention of the release form for the purpose of proving that no liability exists is prohibited.  However, the Defendants should be allowed to show that Mr. Ganz [the plaintiff] signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety to the jury.

Dependent upon how the release was written and the statement of the risks in the release, this could be a powerful document showing the plaintiff knew of and assumed the risks.

So Now What?

Make sure your release is written to include the risks of the activity or program. There are several reasons for doing this.

·        Guests who have no clue will have a better time if they understand the risks.

·        Guests who read about the risks have a better understanding of the risks and decided if this is the type of opportunity they want to take.

·        If your release is thrown out, you can still use the release as proof the plaintiff assumed the risk.

You can’t write all the risks into a release. However, you can write in the following:

1.      Those injuries that are common to the activity or program.

2.    Those injuries that can cause permanent injury or death.

3.    Those risks which are different in your activity from the normal or competitive activities.

The second group is easy to identify. If it is rock climbing, it is falling or having something fall on you resulting in permanent injury or death. In paddlesports it is drowning, hypothermia, or a “near-drowning” resulting in brain injury.

The first is also easy. Look at every injury you have ever seen in your activity. Injuries from falling on the hike to the base of the climb or falling down carrying a boat to the river. After lunch on the river, people sit on a hot raft getting a burn or rope burn while belaying. Those injuries that are not life threatening but occur regularly and deplete your stock of band aids.

The third category is a little harder. How is your program or activity different from the rest of the people in your industry. If the majority of climbing walls have padding on the floor, and yours does not you should identify this as a risk. In cycling, you need to identify if you have a closed course, a race course without cars on it is critical for participants to know.

As always, you have to have your release created by someone who understands your risks, your sport your activity and knows how to write a release.

What do you think? Leave a comment.

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Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

Adam Ganz, Plaintiff, vs. United States Cycling Federation; Missoula Downtown Association; The City of Missoula; and John Does as employees and/or agents of United States Cycling Federation, Missoula Downtown Association, and/or the City of Missoula, Defendants.

Cause No. 74659

FOURTH JUDICIAL DISTRICT COURT OF MONTANA, MISSOULA COUNTY

1994 Mont. Dist. LEXIS 756

May 17, 1994, Decided

CORE TERMS: non-profit, admissible, limine, release form, limine to exclude, corporate status, feasibility, bicycle

JUDGES: [*1] Douglas G. Harkin, DISTRICT COURT JUDGE.

OPINION BY: Douglas G. Harkin

OPINION

MEMORANDUM AND ORDER

This matter comes before the Court upon a motion in limine submitted by the Plaintiff, Adam Ganz, and a motion in limine submitted by Defendants United States Cycling Federation and the Missoula Downtown Association. The parties have briefed the motions and they are deemed submitted and ready for ruling.

BACKGROUND

This action arose out of the alleged personal injuries Mr. Ganz received while involved in the Great Western Stage Race held in Missoula on July 16, 1988. Mr. Ganz alleges that a pedestrian darted out in front of him on the race course and caused him to crash his bicycle. He alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course. Mr. Ganz filed a motion in limine to exclude any mention of: (1) the Defendants’ non-profit corporate status, or (2) a waiver of liability that he signed. The Defendant filed a motion in limine to exclude the mention of insurance.

NON-PROFIT STATUS

Mr. Ganz contends that any mention of the non-profit corporate status of Defendants Missoula Downtown [*2] Association and the United States Cycling Federation should be prohibited, as non-profit corporations are subject to the same liability as individuals. He contends that the mention of the non-profit status would be prejudicial to his case.

The Defendants argue that the feasibility of providing protection [i.e., a fence along the entire race course] is at issue, therefore, the non-profit corporate status is a consideration and should be held admissible. In addition, the Defendants contend that the non-profit status should be admissible for general background purposes in order to challenge Mr. Ganz’s testimony that the Defendants had the ability to protect the entire race course.

35-2-118, M.C.A. provides that a non-profit corporation has all the powers as an individual to do all things necessary or convenient to carry out its affairs, including, without limitation, the power to sue and be sued in its corporate name.

Any admission of the non-profit status for general background purposes is prohibited, as it may improperly imply that there is a lack of funds to pay a judgment, or that a non-profit business should be held to a lesser standard under a negligence claim. If the [*3] feasibility of protection arises, after obtaining leave of the Court, the Defendants can show what funds were available for protection without showing the corporations’ non-profit status.

WAIVER

Mr. Ganz contends that there should be no mention of the waiver which Mr. Ganz signed prior to the race, as it is void and in violation of public policy. The Defendants contend that Mr. Ganz’s signature on the release form conveys his acknowledgement that various conditions could exist on the race course, and that it is contrary to his testimony that bicycle racing is a safe sport, therefore, the release should be admissible for impeachment purposes.

28-2-702, M.C.A. provides that an entity cannot contractually exculpate itself from liability for willful or negligent violations of legal duties. Miller v. Fallon County, 222 Mont. 214, 221, 721 P.2d 342 (1986). The mention of the release form for the purpose of proving that no liability exists is prohibited. However, the Defendants should be allowed to show that Mr. Ganz signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety [*4] to the jury.

INSURANCE

The Defendants request that the mention of insurance be prohibited pursuant to Rule 411, M.R.E. Mr. Ganz contends that the rule does not require the exclusion of the mention of insurance if it is offered for other purposes, such as to prove agency, ownership, control, or bias of a witness. Heisler v. Boule, 226 Mont. 332, 735 P.2d 516 (1987); and Massman v. City of Helena, 237 Mont. 234, 773 P.2d 1206 (1989).

Mr. Ganz has not clearly enunciated how the exceptions to Rule 411, M.R.E. are applicable to the facts of this case, therefore, the mention of insurance is prohibited unless Mr. Ganz obtains prior approval of this Court.

ORDER

Based upon the foregoing, the Plaintiff’s and the Defendants’ motions in limine are GRANTED as provided herein.

DATED this 17th day of May, 1994.

Douglas G. Harkin

District Judge

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Upky v. Marshall Mountain, Llc, 2008 MT 90; 342 Mont. 273; 180 P.3d 651; 2008 Mont. LEXIS 94

Upky v. Marshall Mountain, Llc, 2008 MT 90; 342 Mont. 273; 180 P.3d 651; 2008 Mont. LEXIS 94

CHAD UPKY, Plaintiff, v. MARSHALL MOUNTAIN, LLC, Defendant, and MARSHALL MOUNTAIN, LLC, Third-Party Plaintiff and Appellant, v. BOARD OF MISSOULA, INC. and BOARD OF MISSOULA, LLC, Third-Party Defendants and Appellees.
DA 06-0109
SUPREME COURT OF MONTANA
2008 MT 90; 342 Mont. 273; 180 P.3d 651; 2008 Mont. LEXIS 94
May 16, 2007, Submitted on Briefs
March 18, 2008, Decided
April 3, 2008, Released for Publication
PRIOR HISTORY:
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 02-112. Honorable John W. Larson, Presiding Judge.
Upky v. Marshall Mt., 2004 Mont. Dist. LEXIS 3716 (2004)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff accident victim brought a negligence suit against defendant ski area owner, which in turn filed a complaint against third-party defendant ski jump builder for contribution or indemnification. After a jury trial on the third-party complaint, the District Court of the Fourth Judicial District, County of Missoula (Montana), entered judgment in favor of the builder. The owner appealed.
OVERVIEW: After the ski area owner and the accident victim came to a settlement, the ski jump builder was allowed to amend its answer to the owner’s complaint, pursuant to M.R. Civ.P. 15(a), to include a claim that the victim’s negligence, in combination with that of the owner, caused his injuries. The supreme court held that the trial court did not err when it permitted the builder to amend its answer, and that even if there was error, it was harmless because: (1) the jury, in determining that the builder was not negligent, did not reach the question whether the victim was negligent; and (2) thus there was no prejudice to the owner. The supreme court also held that the record demonstrated that substantial credible evidence supported the jury’s verdict that the builder was not negligent; because the evidence was conflicting; the supreme court deferred to the jury’s determination as to which evidence was more credible.
OUTCOME: The trial court’s judgment was affirmed.
CORE TERMS: jump, amend, bamboo, poles, jury verdict, comparative negligence, skiers, ski, credible evidence, constructed, prejudiced, snowboard, morning, jury’s decision, conflicting evidence, unfinished, harmless, ski area, snowboarders, patrol, verdict form, responsive pleading, reasonable mind, inspected, non-party, apportion, predicate, credible, manager, marked
COUNSEL: For Appellant: Gig A. Tollefsen, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana.
For Appellees: Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, Great Falls, Montana.
JUDGES: JOHN WARNER. We Concur: JIM RICE, JAMES C. NELSON, PATRICIA COTTER, BRIAN MORRIS.
OPINION BY: John Warner
OPINION
[***652] [**274] Justice John Warner delivered the Opinion of the Court. [*P1] Third-party plaintiff Marshall Mountain, LLC (Marshall Mountain) appeals from a judgment entered in the Fourth Judicial District Court, Missoula County, in favor of third-party defendants Board of Missoula, Inc. and Board of Missoula, LLC (Board of Missoula), dismissing its third party complaint after a jury verdict in Board of Missoula’s favor.
[*P2] We restate and address the issues on appeal as follows:
[*P3] 1. Did the District Court err when it granted Board of Missoula’s motion to amend its answer to allege comparative negligence by Chad Upky?
[*P4] 2. Was the jury’s verdict that Board of Missoula was not negligent supported by substantial credible evidence?
BACKGROUND
[*P5] On February 12, 1999, eighteen year old Chad Upky was rendered a paraplegic in a skiing accident at Marshall Mountain ski area. The injuries occurred when Upky skied over a ski jump ramp constructed at Marshall Mountain for use in an upcoming snowboard competition. Upky became inverted when he skied over the jump and was injured when he landed.
[**275] [*P6] Board of Missoula was a local snowboard shop that in the years before Upky’s accident had worked with Marshall Mountain to construct jumps for use in snowboard competitions at the ski area. In prior years, the jumps had been constructed up to two weeks before the competition and had remained open for use by skiers at Marshall Mountain. In 1999, Marshall Mountain’s [***653] owner, Bruce Doering, and Board of Missoula’s co-owner, Wright Hollingsworth, agreed to construct a jump for use in that year’s competition. The ski jump on which Upky was injured was constructed two days before the accident. Doering later claimed, on behalf of Marshall Mountain, that he understood the jump would be open for use before the February 1999 competition. To the contrary, Hollingsworth asserted that he and Doering had agreed the jump would be closed prior to the 1999 competition.
[*P7] On Wednesday, February 10, 1999, before the snowboard competition scheduled for the next Saturday, Hollingsworth went to Marshall Mountain after the ski area closed for the evening and built the jump with the help of Marshall Mountain’s snowcat operator, Tyson Miller. Miller and Hollingsworth worked on the jump from about 10:00 p.m. Wednesday night until 2:00 a.m. the next morning. Hollingsworth later said that he wanted to hand finish the jump in the daylight using shovels. It was his opinion that the jump should not be opened for use until it was finished. He said that before he left early Thursday morning he laid bamboo poles across the jump to indicate that it was closed. Hollingsworth said that he believed the ski patrol would see the bamboo poles when they inspected the area in the morning and would keep the jump closed. Later, members of the ski patrol and other employees of Marshall Mountain disagreed about whether there were bamboo poles across the jump on Thursday morning.
[*P8] No matter whether Hollingsworth had marked the jump as closed with bamboo poles, the jump was open for use by skiers and snowboarders that Thursday and again on Friday. Doering and the ski patrol examined the jump, and it was left open for skiers and snowboarders. Doering stated that he had ultimate authority on whether or not to allow Marshall Mountain patrons to use the jump. Several employees of Marshall Mountain used the jump with no problem.
[*P9] On Friday, the day of Upky’s accident, the jump was open throughout the day. Late in the day, a Marshall Mountain employee suggested to Doering that they close the jump due to changing snow [**276] and lighting conditions. However, Doering decided to keep the jump open. Chris Laws, Board of Missoula’s retail manager, was at Marshall Mountain on Friday. He noticed the jump was open, even though he understood it was supposed to be closed.
[*P10] On Friday evening, Upky and some friends approached the jump. Upky claimed that he tried to slow himself going into the jump by snowplowing with his skis and went over the jump at a controlled speed. Other witnesses to the accident, including Doering and Laws, stated the Upky “bombed” the jump by going into it extremely fast. Upky suffered severe injuries as a result of his fall, including a broken neck that resulted in his paraplegia.
[*P11] In 2002, Upky brought suit against Marshall Mountain, alleging that its negligence was the cause of his injuries. Upky made no claim against Board of Missoula. In its answer, Marshall Mountain denied any negligence and asserted affirmative defenses, including Upky’s comparative negligence. Marshall Mountain filed a third-party complaint against Board of Missoula seeking contribution or indemnification, asserting that Board of Missoula was responsible for any negligence in the construction of the jump. In its answer, Board of Missoula denied it had been negligent and went on to claim that the jump was unfinished when Upky used it and that it had cordoned off the jump to prevent its use prior to the competition, but Marshall Mountain negligently allowed the use of the jump on the day of Upky’s accident. Subsequently, Board of Missoula, in response to a request for admission, admitted that it had left the jump in an unfinished condition and that it was dangerous. However, it qualified the admission to state that the actions of Marshall Mountain in removing the bamboo poles marking the jump closed and allowing its patrons to use the jump were careless and caused Upky’s injuries.
[*P12] Following discovery, Board of Missoula moved for summary judgment, arguing that it was not negligent as a matter of law. The District Court denied the motion for summary judgment in November 2003.
[***654] [*P13] In December 2003, Marshall Mountain and Upky settled Upky’s claim. In March 2004, the District Court noted that because of the settlement only Marshall Mountain’s claims against Board of Missoula remained to be litigated; Upky’s claims against Marshall Mountain were later dismissed.
[*P14] In July 2004, Board of Missoula moved to amend its answer, pursuant to M. R. Civ. P. 15(a), to include a claim that Upky’s negligence, in combination with that of Marshall Mountain, caused his [**277] injuries, and to have the jury determine the extent of his negligence as a non-party under § 27-1-703, MCA. Board of Missoula’s amended answer reasserted the claim in the original answer that Board of Missoula was not negligent and Marshall Mountain was negligent for allowing skiers to use the unfinished jump. The amended answer only added the assertion that both Upky and Marshall Mountain caused or contributed to the damages alleged by Upky. Board of Missoula did not attempt to withdraw its admission that the jump was dangerous. Marshall Mountain opposed the motion, arguing that it came too late and the amendment adding a claim of comparative negligence by Upky would be unfairly prejudicial. The District Court granted the motion to amend.
[*P15] A jury trial on the third-party complaint began December 5, 2005. At trial, numerous witnesses provided conflicting evidence on the events surrounding Upky’s injuries. The witnesses’ testimony varied widely on whether Doering and Hollingsworth had agreed to close the jump prior to the competition, whether Hollingsworth placed bamboo poles on the jump, and how dangerous, if at all, the jump was for skiers and snowboarders. There was also conflicting evidence regarding the exact circumstances of Upky’s fall, specifically how far away he was when he began approaching the jump and how fast he went over the jump.
[*P16] The special verdict form submitted to the jury first instructed it to determine if Board of Missoula was negligent. Only if the jury found that Board of Missoula was negligent was it to decide if Upky and Marshall Mountain were also negligent and fix the percentages of negligence. The jury returned its verdict finding that Board of Missoula was not negligent. Thus, it did not apportion fault. The District Court entered a final judgment in favor of Board of Missoula. Marshall Mountain appeals.
DISCUSSION
[*P17] Issue 1: Did the District Court err when it granted Board of Missoula’s motion to amend its answer to allege comparative negligence by Chad Upky?
[*P18] The Montana Rules of Civil Procedure provide for amendments to pleadings:
[HN1] A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party [**278] may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
M. R. Civ. P. 15(a). [HN2] While amendments are not permitted in every circumstance, we have emphasized that, as Rule 15(a) states, leave to amend should be “freely given” by district courts. Loomis v. Luraski, 2001 MT 223, P 41, 306 Mont. 478, P 41, 36 P.3d 862, P 41. District courts should permit a party to amend the pleadings when, inter alia, allowing an amendment would not cause undue prejudice to the opposing party. Prentice Lumber Co. v. Hukill, 161 Mont. 8, 17, 504 P.2d 277, 282 (1972) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)).
[*P19] Marshall Mountain claims it was prejudiced by the amendment to the pleadings which allowed the jury to consider Upky’s negligence. However, the jury heard all of the evidence concerning the actions of Board of Missoula presented by Marshall Mountain, which included the admission that the jump was dangerous, and nevertheless determined that Board of Missoula was not negligent. Thus, it did not reach the question [***655] of whether Upky was negligent. As the jury did not consider any negligence on the part of Upky in reaching its verdict, there was no prejudice to Marshall Mountain. [HN3] When a special verdict requires a jury to answer a question only if it first determines that a predicate question is answered in the affirmative, and the jury answers the predicate question in the negative, we have consistently held that the party objecting to the submission of the second, unanswered question is not prejudiced. Under such circumstances we consider any error harmless, and decline to interfere with the jury’s decision. See e.g. Payne v. Knutson, 2004 MT 271, PP 17-18, 323 Mont. 165, PP 17-18, 99 P.3d 200, PP 17-18 (concluding there was no prejudice to the plaintiff where the jury was not instructed to apportion negligence among the defendants because the jury found the plaintiff was more than 50% negligent and thus could not recover); Peschke v. Carroll College, 280 Mont. 331, 343, 929 P.2d 874, 881 (1996) (concluding that although a district court erred in admitting a videotape, it went to the issue of causation, which the jury did not reach, and the error was thus harmless); Drilcon, Inc. v. Roil Energy Corp., 230 Mont. 166, 173, 749 P.2d 1058, 1062 (1988) (declining to address appellant’s argument that the special verdict form erroneously included non-parties because the jury apportioned negligence only among the parties to the action and appellant was not prejudiced).
[**279] [*P20] We affirm the District Court’s order allowing Board of Missoula to amend the pleadings to allege Upky’s comparative negligence because Marshall Mountain was not prejudiced by it and any error was harmless.
[*P21] Issue 2: Was the jury’s verdict that Board of Missoula was not negligent supported by substantial credible evidence?
[*P22] [HN4] This Court does not review a jury verdict to determine if it was correct. We review a jury’s decision only to determine if substantial credible evidence in the record supports the verdict. Campbell v. Canty, 1998 MT 278, P 17, 291 Mont. 398, P 17, 969 P.2d 268, P 17; Wise v. Ford Motor Co., 284 Mont. 336, 343, 943 P.2d 1310, 1314 (1997). Substantial evidence is “evidence that a reasonable mind might accept as adequate to support a conclusion” and may be less than a preponderance of the evidence but must be more than a “mere scintilla.” Campbell, P 18.
[*P23] [HN5] It is the role of the jury to determine the weight and credibility of the evidence, and this Court will defer to the jury’s role. Seeley v. Kreitzberg Rentals, LLC, 2007 MT 97, P 21, 337 Mont. 91, P 21, 157 P.3d 676, P 21, overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, P 27, 338 Mont. 19, P 27, 162 P.3d 134, P 27. [HN6] We view the evidence in the light most favorable to the prevailing party. Where conflicting evidence exists, we will not overturn a jury’s decision to believe one party over another. Samson v. State, 2003 MT 133, P 11, 316 Mont. 90, P 11, 69 P.3d 1154, P 11.
[*P24] The record before us demonstrates that substantial credible evidence supports the jury’s verdict that Board of Missoula was not negligent. Hollingsworth testified that he and Doering agreed the jump would be closed prior to the competition. Hollingsworth also testified that he had marked the jump closed with bamboo poles the night it was constructed, and other testimony supported this assertion. There was also evidence that only Marshall Mountain had the ultimate decision-making authority to open or close the jump. Marshall Mountain’s manager, Doering, testified he inspected the jump and thought it was safe. This evidence, which does not include the testimony describing Upky’s actions, provided the jury with an adequate basis to support its decision that Board of Missoula was not negligent. Campbell, P 18.
[*P25] There is also evidence which would tend to show Board of Missoula was negligent. However, because the evidence is conflicting we defer to the jury’s determination as to which evidence is more credible. Seeley, P 21. We conclude that the record contains sufficient [**280] evidence for reasonable minds to conclude that Board of Missoula was not negligent.
[***656] CONCLUSION
[*P26] The District Court did not err when it permitted Board of Missoula to amend its answer, and the jury verdict is supported by substantial credible evidence.
[*P27] Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS