Stay away from Grooming Machines when you are skiing and boarding. They are dangerous!

Ski area safety acts were written, no matter what anyone says, to protect ski areas. However, if the ski area does not follow the statutes, then they cannot use the statute as a defense.

Citation: Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

State: Michigan, United States District Court, E.D. Michigan, Southern Division

Plaintiff: Corinne Dawson et al.

Defendant: Mt. Brighton, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: Michigan Ski Safety Act

Holding: for the plaintiff

Year: 2013

Summary

Michigan Ski Safety Act lists grooming machines as an inherent risk of skiing. The act also requires signs to be posted on slopes where groomers are operating. Failure to have the proper sign creates an issue as to whether the inherent risk applies defeating the ski areas’ motion for summary judgment.

Facts

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

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

The only real defense the defendant ski area had was the Michigan Ski Safety Act. The plaintiffs argue that because the defendants had violated the act, they could not use the act to protect them from a lawsuit.

The court then went through the act looking at the purpose for its creation and the protections it affords ski areas. One specific part of the act’s states that snow-grooming equipment is a risk.

MCL § 408.342. Duties of skier; acceptance of inherent dangers.

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

However, the act also requires that when snow grooming equipment is on the slope. there must be a sign posted.

MCL § 408.326a. Duties of ski area operators.

(f) Place or cause to be placed, if snow-grooming or snowmaking operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.

The plaintiff argued the signs were not posted on the run.

The issue for the court was, did the violation of the duty created by the statute remove the defense the Michigan Ski Safety Act provides.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.”

However, the court found that the issue presented by the plaintiff, that no sign was present created a genuine issue of material fact, which denies a motion for summary judgment.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.”

The case went on to discuss other motions filed that did not relate to the facts or legal issues of interest.

So Now What?

A Colorado ski area had a multi-year nasty battle over that same issue eleven years earlier. Now signs are permanently posted at all lift loading areas and the at the tops of unloading areas so you know you can realize that groomers may be on the slopes.

At the same time, most ski areas have worked hard to remove snow groomers from the slopes when skiers are present.

For another case, colliding with a snow cat see: The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.

What do you think? Leave a comment.

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Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Corinne Dawson et al., Plaintiffs, v. Mt. Brighton, inc. et al., Defendants.

Civil Action No. 11-10233

United States District Court, E.D. Michigan, Southern Division.

March 27, 2013

ORDER DENYING MOTION FOR SUMMARY JUDGMENT, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS AND ORDER SETTING FINAL PRETRIAL CONFERENCE AND TRIAL DATES

DENISE PAGE HOOD, District Judge.

I. BACKGROUND

On August 10, 2011, a First Amended Complaint was filed by Plaintiffs Corinne Dawson, individually and as co-Next Friend of A.M., a minor, Peter Miles, co-Next Friend of A.M., a minor, Justine Miles and Dwaine Dawson against Defendants Mt. Brighton, Inc. and Robert Sturgis alleging: By A.M., by and through his Co-Next Friends, Statute Violations against All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count I); By Corinne Dawson, Dwaine Dawson and Justine Miles, Statute Violations by All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count II); By A.M., by and through his Co-Next Friends, Common Law Premises Liability against All Defendants (Count III); and, By Corinne Dawson, Dwaine Dawson and Justine Miles, Common Law Premises Liability against All Defendants (Count IV).

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

This matter is now before the Court on Defendants’ Motion for Summary Judgment. Plaintiffs filed a response, along with various documents, including “Plaintiffs’ Separate Statement of Facts”, Declaration of Larry Heywood, and Declaration of Timothy A. Loranger. Defendants filed a reply. Plaintiffs also filed a document titled “Plaintiffs’ Evidentiary Objections and Motion to Strike” portions of Defendants’ summary judgment motion. Defendants replied to this motion. Defendants filed a Motion to Adjourn Scheduling Order Dates seeking adjournment of the December 4, 2012 trial date, to which Plaintiffs submitted a response that they did not object to the motion.

II. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.

B. Michigan’s Ski Area Safety Act

Defendants argue they are entitled to summary judgment under Michigan’s Ski Area Safety Act (“SASA”) which bars recovery for any injuries under common law premises liability or negligence claims. Plaintiffs respond that because of Defendants’ violation of SASA, specifically failing to post any signs that grooming was taking place, Defendants are not immune from liability under SASA. Plaintiffs also argue that SASA does not apply since the place where the incident occurred was not a ski run, slope or trail.

SASA was enacted in 1962. The purposes of SASA include, inter alia, safety, reduced litigation, and economic stabilization of an industry which contributes substantially to Michigan’s economy. Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848, 850 (6th Cir. 1999). The Michigan legislature perceived a problem with respect to the inherent dangers of skiing and the need to promote safety, coupled with the uncertain and potentially enormous ski area operators’ liability. Id. (citation omitted) Given the competing interests between safety and liability, the legislature decided to establish rules regulating ski operators and the ski operators’ and skiers’ responsibilities in the area of safety. Id. The Legislature decided that all skiers assume the obvious and necessary dangers of skiing, limiting ski area operators’ liability and promoting safety. Id. The statute states:

(1) While in a ski area, each skier shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in areas which are marked as open for skiing on the trial board…

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

M.C.L. § 408.342. This subjection identifies two types of dangers inherent in the sport. Anderson v. Pine Knob Ski Resort, Inc., 469 Mich. 20, 24 (2003). The first is described as natural hazards and the second as unnatural hazards. Id. Both types of examples are only examples because the Legislature used the term “dangers include, but are not limited to.” Id. at 25.

A.M. was injured by snow-grooming equipment, which is expressly noted in SASA. Plaintiffs argue that there was no sign posted regarding the use of snow-grooming equipment, as required in the statute, M.C.L. § 408.326(a), which states,

Each Ski Area operator shall, with respect to operation of a ski area, do all of the following:

* * *

(f) Place or case to be placed, if snow grooming or snow making operations are being performed on a ski run, slope, or trial while the run, slope, or trial is open to the public, a conspicuous notice at or near the top of the entrance to the run, slope, or trail indicating that those operations are being performed.

M.C.L. § 408.326(a).

The Michigan courts have held that even if there are allegations that provisions of SASA were violated which may have caused injury, there is no limitation in SASA as to the risks assumed. Rusnak v. Walker, 273 Mich.App. 299, 307 (2006). Rusnak was a suit under SASA involving a collision between two skiers. In Rusnak, the Michigan Court of Appeals noted that, “the Legislature did not start off the subsection by stating except for violations of other sections of this act, ‘ the skier assumes the obvious and necessary dangers inherent in the sport.” Id . (italics added). The assumption of the risk provision in M.C.L. § 408.342 is “clear and unambiguous, providing that a skier assumes the risk of obvious and necessary dangers that inhere in the sport, and [t]hose dangers’ specifically include collisions” with snow groomers. Id.

The Michigan Supreme Court has made clear that the Legislature created a certainty concerning a ski area operator’s liability risks. Anderson, 469 Mich. at 26. In a case where a skier collided at the end of a ski run with a shack that housed race timing equipment, the Michigan Supreme Court noted:

To adopt the standard plaintiff urges would deprive the statute of the certainty the Legislature wished to create concerning liability risks. Under plaintiff’s standard, after any accident, rather than immunity should suit be brought, the ski-area operator would be engaged in the same inquiry that would have been undertaken if there had been no statute ever enacted. This would mean that, in a given case, decisions regarding the reasonableness of the place of lift towers or snow groomers, for example, would be placed before a jury or judicial fact-finder. Yet it is just this process that the grant of immunity was designed to obviate. In short, the Legislature has indicated that matters of this sort are to be removed from the common-law arena, and it simply falls to us to enforce the statute as written. This we have done.

Id. There is no need to consider whether the ski operator retains a duty under common-law premises liability. Id. at 26-27. Plaintiffs’ argument that Defendants violated SASA by failing to post the appropriate sign that snow grooming was taking place does not override the express assumption of the risk by the skier enacted by the Legislature.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” Rusnak, 273 Mich.App. at 309. However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.” Id. “Indeed, we cannot favor one section, such as the assumption-of-risk provision, over other equally applicable sections, such as the duty and liability provisions.” Id. The Rusnak panel held that a plaintiff does assume the risks set forth in the statute. Id. The provisions must be read together while giving them full force and effect. Id. However, a plaintiff can still recover limited damages against a defendant if the plaintiff can prove that a defendant violated SASA, causing the injuries suffered by the plaintiff. Id. In such a situation, the defendant’s acts would be relevant for a “comparative negligence” evaluation. Id. at 311. Depending on the facts, the actions of a defendant may be relevant for purposes of determining the allocation of fault and, perhaps damages. Id. at 313. Reading the provisions together is consistent with the plain language of the two provisions at issue, which conform to the legislative purpose of SASA – to reduce the liability of ski operators, while at the same time placing many, but not all, risks of skiing on the individual skiers. Id. at 314.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.” The State of Michigan Investigator and Defendants’ expert, Mark Doman, stated at his deposition that the area where the incident occurred could be described as a “ski run, slope, or trail” even though Defendants argue that this area is a “transition area.” (Doman Dep., p. 74) Summary judgment on the issue of notice under M.C.L. § 408.236a(f) is denied. Although there is no genuine issue of material fact that A.M. assumed the risk as to snow groomers under SASA, Defendants’ actions as to their duties under M.C.L. § 408.236a(f) as to notice is relevant for purposes of determining the allocation of fault and damages under a comparative negligence analysis.

III. SANCTIONS

Defendants seek sanctions against Plaintiffs under the Court’s inherent power. Defendants argue that Plaintiffs have no intention to follow applicable well established court and ethical rules, including: page limit; entering onto Mt. Brighton for inspection in violation of Fed.R.Civ.P. 34 without notice to Defendants; and having contact with the owner of Mt. Brighton without counsel in violation of the Michigan Rules of Professional Conduct 4.1 and 4.2. Defendants seek dismissal based on Plaintiffs’ alleged pattern of discovery abuse. Defendants claim that Plaintiffs’ counsel took an oath in this Circuit to follow the rules and practice with integrity, yet counsel had no plans to follow the oath and this Court must sanction Plaintiffs’ counsel to deter any further continued conduct. Plaintiffs respond that they did not violate the court or ethical rules.

A. Page Limit

As to the page limit claim, Defendants argue that Plaintiffs violated Local Rule 7.1 regarding page limits since Plaintiffs submitted separate documents setting forth their version of “material facts” separate from Plaintiffs’ response brief, in addition to other documents including “objection” to the summary judgment motion and “declarations” by Plaintiffs’ experts.

Plaintiffs respond that as to the page limit issue, this matter was argued at the time the Court heard the summary judgment motion. In any event, Plaintiffs claim they did not exceed the page limit since Local Rule 7.1(d)(3) states that the text of a brief may not exceed 20 pages and that Plaintiffs’ response brief was only 19 pages. Plaintiffs agree that the accompanying documents in support of their brief included declaration of expert witness, list of material facts, a motion to Defendants’ report and objections to Defendants’ purported “evidence.” These documents are not part of their response “brief” but other documents supporting Plaintiffs’ arguments. Plaintiffs argue that while there is nothing in the rules which requires the filing of a separate document of undisputed facts, there is nothing prohibiting such a filing.

Local Rule 7.1(d)(3) provides, “[t]he text of a brief supporting a motion or response, including footnotes and signatures, may not exceed 20 pages. A person seeking to file a longer brief may apply ex parte in writing setting forth the reasons.” E.D. Mich. LR 7.1(d)(3). A review of Plaintiffs’ “Response” to the Motion for Summary Judgment (Doc. #28) shows that the brief is only 19 pages, which does not violate Local Rule 7.1(d)(3). However, Plaintiffs did file other documents supporting their opposition including a separate document entitled “Plaintiffs’ Separate Statement of Material Facts” (Doc. #29) which consists of 14 pages. This document highlights facts and source of the facts, including declarations and deposition page numbers. Plaintiffs also filed a separate document entitled “Plaintiffs’ Evidentiary Objections and Motion to Strike” (Doc. #30) which consists of 9 pages. Plaintiffs also filed two documents entitled “Declaration of Larry Heywood” (Doc. #31) and “Declaration of Timothy A. Loranger, Esq.” (Doc. #32).

Defendants did not cite to any authority, other than the Court’s inherent power, that violation of a Local Rule must result in dismissal of a case. It is noted that at the time of the filing of the response and other documents in September 2012, Defendants did not object to these filings by a separate motion until the instant motion which was filed on November 26, 2012. Defendants addressed the documents Plaintiffs filed in Defendants’ reply brief and so argued at oral arguments. Generally, exhibits and declarations supporting motions or response briefs are “attached” as exhibits to the main brief. As to Plaintiffs’ Separate Statement of Material Facts and Evidentiary Objections and Motion to Strike, these arguments should have been made in Plaintiffs’ main brief.[1] These documents may have been filed to circumvent the page limit requirement. However, the Court has the discretion to allow filings separate from the parties’ main brief. A violation of the page limit local rule does not support dismissal of the case as sanctions.

B. Rule 34

Defendants argue that Plaintiffs violated Fed.R.Civ.P. Rule 34 regarding inspection of land when Plaintiffs’ counsel went to Mt. Brighton, without notice to Defendants and their counsel on two occasions.

Plaintiffs admit that counsel visited Mt. Brighton property without providing any notice to the defense because Plaintiffs believed no such notice was necessary since Mt. Brighton was open to the public for business when they visited. Plaintiffs argue that Rule 34 only states that a party “may” serve a request to permit entry and that the rule does not state “must.” Plaintiffs admit photographs were taken at that time, but that taking photographs was not prohibited by Mt. Brighton. Plaintiffs claim that admissions of these photographs at trial should be brought as motions in limine.

Rule 34 of the Rules of Civil Procedure provides:

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

* * *

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Fed. R. Civ. P. 34(a)(2).

Generally, if a party seeks protection from certain discovery matters, that party usually files a Motion for protective order under Fed.R.Civ.P. Rule 26(c). Here, Defendants did not seek such protection, nor did Defendants object to Plaintiffs’ entry of the land once they learned of the first instance in June 29, 2012 during the deposition of David Mark Doman wherein Plaintiffs’ counsel admitted he had sent an agent to take pictures of Defendant’s premises without notice to defense counsel. The instant Motion as filed in November 2012. Discovery rule violations are usually addressed under Rule 37. Defendants did not file a motion under Rule 37 to prohibit Plaintiffs from using any photographs they took in connection with any pre-trial proceedings at that time.

The second incident occurred on November 14, 2012, the same day oral argument was heard on the summary judgment motion. Joseph Bruhn, owner of Mt. Brighton, indicated he met three gentlemen who did not identify themselves but indicated they were there for “breakfast” even though it was 11:00 a.m. (Bruhn Aff., ¶ 5) Mr. Bruhn indicated the restaurant was not open and later noticed the gentlemen were taking pictures from the deck. (Bruhn Aff., ¶ 8) Mr. Bruhn learned the gentlemen were lawyers from Los Angeles in town to attend facilitation of this matter to be held the next day, November 15, 2012. (Bruhn, Aff., ¶9) This second incident is troublesome. Although Mr. Bruhn did not identify himself as the owner of Mt. Brighton, Plaintiffs’ counsel themselves knew the purpose of their visit – to inspect the property and take pictures.

In general, Rule 37(b)(2)(B) of the Rules of Civil Procedure provides for sanctions where a party fails to comply with a court order requiring the party to produce another person for examination, including prohibiting the disobedient party from introducing matters in evidence, striking pleadings, rendering default judgment against the disobedient party, treating as contempt of court the failure to obey an order or any further “just orders.” Fed.R.Civ.P. 37(b)(2)(B); 37(b)(2)(A). Here, no order has been entered by the Court striking the photographs or finding that Plaintiffs violated Rule 34. The “spirit” of Rule 34 was violated in that Plaintiffs did not notify the defense they were inspecting the premises for discovery purposes, even if the property is open to the public. The property is private property, but open to the public. The lay of the land is at the core of these proceedings. Plaintiffs should have notified the defense they sought to inspect the land as required under Rule 34. “Trial by surprise” is not a tactic in civil actions and related discovery proceedings. However, dismissal of the case is not warranted at this time, but the Court will consider this matter at trial by way of a motion in limine or objection if any testimony or exhibit is sought to be introduced relating to Plaintiffs’ first visit to Mt. Brighton. The second visit is addressed below.

C. Violation of Michigan Rules of Professional Responsibility

Defendants seek dismissal as sanctions because they allege that Plaintiffs’ counsel violated the Michigan Rules of Professional Responsibility (“MRPC”) by contacting Mt. Brighton’s owner without counsel. Plaintiffs respond that when counsel visited Mt. Brighton unannounced, counsel did not know that the gentleman greeting him at the Mt. Brighton restaurant was Mr. Bruhn, the owner of Mt. Brighton. Mr. Bruhn informed counsel that the kitchen was not open but he never indicated that Mt. Brighton was closed. Plaintiffs’ counsel then went out onto the patio to take a few photographs of the ski/golf area. Plaintiffs claim that Defendants admit in their moving papers that Plaintiffs did not violate MRPC 4.2 since there was no discussion of any aspect of the “subject of the representation” but that because counsel did not identify himself to Mr. Bruhn. Mr. Bruhn indicated in an affidavit that he did not learn of Plaintiffs’ counsel identity until the facilitation in this matter the day after.

MRPC 4.2 provides, “In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Although Defendants admit that “arguably” Plaintiffs did not directly speak with Mr. Bruhn as to the “subject of the representation, ” Plaintiffs’ counsel knew the reason they were on the premises was to take photographs of the property. Defendants seek an order from this Court finding that Defendants violated Rule 4.2 and that the proper sanction is to dismiss the case.

Although Plaintiffs’ counsel, as noted by the defense, did not “arguably” violate Rule 4.2, the Court cannot expressly so find. Violations of the professional responsibility code must be brought under E.D. Mich. LR 83.22. Defendants have not sought such a formal request. The Court, however, under Fed.R.Civ.P. 37(b)(2), will not allow Plaintiffs to offer any photographs taken of the property during the second visit to Mt. Brighton on November 14, 2012 since they knew the purpose of their visit was to take photographs and could have so indicated to opposing counsel, Mr. Bruhn or to any of Defendants’ agents. Plaintiffs had notice since June 2012 and under the discovery rules that they were required to notify Defendants of any access to Defendants’ property.

D. Rule 11 Sanctions

In Plaintiffs’ response, they indicate they may seek sanctions under Rule 11 themselves. Generally, Rule 11 provides that prior to requesting/filing a Motion for sanctions under this rule, the party must serve notice to the opposing party under the safe harbor provision of Rule 11. Fed.R.Civ.P. 11(c)(1)(A). Rule 11(c) states that the Motion shall not be filed if not submitted to the opposing party. Pursuant to the “safe harbor” provision in Rule 11, a party seeking sanctions under the rule must first serve notice to the opposing party that such a Motion will be filed. If either party seeks to file such Rule 11 sanctions, they must do so with the “safe harbor” provision in mind.

IV. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 21) is DENIED as more fully set forth above.

IT IS FURTHER ORDERED that the Motion to Adjourn Scheduling Order Dates (Doc. No. 23) is MOOT.

IT IS FURTHER ORDERED that the Motion to Strike Portions of Defendants’ Summary Judgment Motion or Submit Evidence (Doc. No. 30) is DENIED.

IT IS FURTHER ORDERED that the Motion for Sanctions (Doc. No. 39) is GRANTED IN PART and DENIED IN PART. The second set of photographs is disallowed to be used as evidence in this case. The request for dismissal as sanctions is denied.

IT IS FURTHER ORDERED that a Final Pretrial Conference date is scheduled for Monday, June 10, 2013, 2:30 p.m. The parties must submit a proposed Joint Final Pretrial Order by June 3, 2013 in the form set forth in Local Rule 16.2. All parties with authority to settle must appear at the conference. The Magistrate Judge may reschedule the cancelled facilitation and submit a notice to the Court by June 3, 2013 once facilitation is complete.

IT IS FURTHER ORDERED that Trial is scheduled for Tuesday, July 9, 2013, 9:00 a.m.

Notes:

[1] The parties are referred to E.D. Mich. LR 7.1 and CM/ECF Pol. & Proc. R5 and R18 governing filing of motions, briefs and exhibits. See, http://www.mied.usourts.gov.


New Mexico interpretation of the New Mexico Ski Safety Act for injuries a beginner received leaving a ski lesson

I’m not sure why everyone needs to test skier safety acts. Here, the plaintiff admitted he could not ski, left the ski lesson and skied down the hill injuring him. So he sues the ski area?

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

Plaintiff: George Philippi

Defendants: Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation

Plaintiff Claims: negligence and violation of the New Mexico Ski Safety Act

Defendant Defenses: New Mexico Ski Safety Act and statutory assumption of the risk

Holding: for the defendants

This is a pretty simply case. The plaintiff is a body builder. He took a ski lesson from the defendants and was not good at skiing. He was unable to master turning or other maneuvers and fell repeatedly during the lesson. The plaintiff told his instructors to stop the lesson because he was frustrated and tired. Allegedly following the instructor’s suggestions he skied down the hill into a funnel where he fell and was injured his right leg and knee.

The plaintiff sued in Federal District Court, and his claims were dismissed based on a motion for summary judgment. He appealed to the Tenth Circuit Court of Appeals. New Mexico is part of the Tenth Circuit, one of the appellate courts in the federal system based in Colorado. Consequently, this court is familiar with skiing.

Summary of the case

The plaintiff argued two issues on his appeal. First, the lower court misconstrued and misapplied the doctrine of primary assumption of the risk as set forth in the New Mexico Ski Safety Act. His second argument was the act incorporates comparative negligence principles, and thus the act cannot act as a complete bar to his recovery.

The court looked at the first claim and held the New Mexico Ski Safety Act imposes no duty on part of the ski area to protect the plaintiff, a novice skier, from the “inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope.”

The New Mexico Ski Safety Act states that a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The skier assumes the risk of skiing and the legal responsibility of any injury to person or property from skiing. The act then lists the risks the skier assumes, as most acts do.

§ 24-15-10.  Duties of the skiers

B.  A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport, insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property, which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner, which may cause or contribute to the injury of anyone.

The plaintiff argued the risks he encountered were not obvious to him because he was a novice skier.

Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope.

The plaintiff argued the ski area had a duty to warn him of obstacles in the lower portion of the slope. The plaintiff argued the obstacles were not plainly visible to him as a novice skier and created hazards to him and the skiing public. The Act imposes an affirmative duty on ski areas to warn or “correct particular hazards or dangers known to the operator where feasible to do so.”

However, the court found that allegations alone are not enough to proceed with his argument. “The party resisting [summary judgment] may not rest on the bare allegations or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.”

However, allegations alone are not enough to sustain an argument and a motion for summary judgment. The plaintiff must have more. Here the court said he needed to identify particular hazards or dangers which the defendant knew about and failed to warn the plaintiff about.

The second issue was the statute incorporated the comparative negligence statute of New Mexico and therefore, could not act as a complete bar to the plaintiff. If you remember comparative negligence, it states that the defense of assumption of the risk is gone. Instead of a plaintiff assuming the risk and his claims being barred, the jury determines how much of the plaintiff’s acts caused his injuries and assigns a percentage of fault to the plaintiff and the defendant. If the defendant’s degree of fault is greater than the plaintiff’s that percentage of fault is applied to the total damages, and the plaintiff takes that percentage of the money as a judgment.

By arguing comparative negligence applies here; the plaintiff is arguing that his case must, by law be heard by a jury to apply the percentage of fault. However, the court found that the statute did not require the use of comparative negligence because the statute protected the ski area from liability. The plaintiff could still assume the risk of his injuries and thus be barred from suing.

So Now What?

The plaintiff argued that the ski area “ski instructor’s manual” failed to point out the need to warn students of dangers and alert them to safety issues. It is interesting to use a ski area manual to try an argument from the lack of a point to train in the ski area manuals.

This argument in the case is what caught my attention. In many cases, we write manuals to help instruct employees to work and keep our guests safe. Here, that information in the manual might have changed the outcome of this case.

If the point had been in the manual, then would the ski area been liable if they had not pointed out the “hazards” on the slope to the plaintiff?

However, you need to think about that issue. How big would a manual need to be to instruct your employees to point out the hazards of the sport or the slope? What about the hazards of any outdoor recreation program or business. Would you have to identify every root crossing a trail or all the branches that may hang low for your taller guests?

The New Mexico Ski Safety Act is well-written and specifically lists the risk a skier assumes. It does not require a balancing test, only one answer. Did the injury the plaintiff receives occur because of the risks the plaintiff assumed stated in the act? In this case, he did. Nor did the statute require the ski area to do any more than identify or correct those risks that could not be seen by a skier of average ability and skill.

For more on comparative negligence see You have to be prepared way before trial, and you have to win at trial, because judges are given wide discretion in controlling your chances on appeal and Sometimes you want too much, sometimes you are greedy: WI plaintiff’s lawyers are killing their income source.

What do you think? Leave a comment.

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Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

George Philippi, Plaintiff-Appellant, v. Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation, a New York corporation, Defendants-Appellees.

No. 91-2253

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

961 F.2d 1492; 1992 U.S. App. LEXIS 6973

April 17, 1992, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-90-1178-JC). D.C. Judge JOHN E. CONWAY

DISPOSITION: DENIED. AFFIRMED

COUNSEL: Submitted on the briefs.

Patrick A. Casey and David C. Ruyle, Patrick A. Casey, P.A., Santa Fe, New Mexico, for the Plaintiff-Appellant.

Joe L. McClaugherty and Cameron Peters, McClaugherty, Silver & Downs, P.C., Santa Fe, New Mexico, for the Defendants-Appellees.

JUDGES: Before MOORE, TACHA, and BRORBY, Circuit Judges.

OPINION BY: TACHA

OPINION

[*1493] TACHA, Circuit Judge.

Plaintiff, George Philippi, appeals a district court order granting summary judgment to the defendants. 1 Philippi argues that the district court erred in granting the defendants summary judgment on Philippi’s negligence action. Philippi also argues that two unresolved issues of New Mexico law may be determinative in this case and urges this court to certify these issues to the Supreme Court of the State of New Mexico. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

[**2] In January of 1984, Philippi suffered a physical injury during the course of a skiing lesson at Sipapu Ski Area in New Mexico. Philippi, a body builder, injured his right leg and knee while attempting to negotiate the “Lower Bambi” run at Sipapu. Philippi brought this action against the defendants claiming, among other things, that the defendants acted negligently in violation of the New Mexico Ski Safety Act, N.M. Stat. Ann. 24-15-1 to 24-15-14 (hereinafter referred to as “the Act” or “the Ski Safety Act”).

In their motion for summary judgment, the defendants argued that they were entitled to judgment as a matter of law because the Ski Safety Act is Philippi’s only remedy and because Philippi’s claim is barred by his statutory assumption of the risks of skiing and his own breaches of duty under the Act. As an alternative basis for summary judgment, the defendants argued that they did not breach any of their duties under the Act. Without stating the basis of its ruling, the district court found that the motion for summary judgment was “well taken and should be granted.”

Philippi raises two claims on appeal. First, he argues that the district court misconstrued and misapplied the doctrine [**3] of primary and secondary assumption of the risk, as embodied in the Ski Safety Act. Second, Philippi argues that even if his conduct constitutes secondary assumption of the risk, the Act embodies comparative negligence principles, and his conduct, therefore, cannot totally bar his recovery under the Act. Philippi urges us to certify both of these issues to the New Mexico Supreme Court.

Although the basis of the district court’s ruling is not evident, [HN1] “we may affirm the granting of summary judgment if any proper ground exists to support the district court’s ruling.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988). We find it unnecessary to reach the merits of Philippi’s arguments on appeal because both arguments presuppose that, but for the district court’s alleged errors in applying the doctrines of assumption of the risk and comparative negligence, the district court would have concluded that the defendants owed a duty to Philippi. Viewing the facts alleged in the complaint and in opposition [*1494] to the summary judgment motion in the light most favorable to Philippi, we hold as a matter of law that the defendants owed no duty to protect Philippi from the harm [**4] he allegedly sustained. Because Philippi cannot demonstrate a duty owed by the defendants, we find certification of the issues on appeal inappropriate, as these issues are not determinative of this action.

This case requires us to determine whether the Ski Safety Act imposes a duty on a ski area operator to warn, or in some way protect, a novice skier from the inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope. Philippi’s injury occurred during a skiing lesson. According to the amended complaint, Philippi fell repeatedly during the lesson and, despite the ski instructors’ demonstrations and instructions, he was unable to master turning and other skiing maneuvers. Philippi allegedly informed the instructors that he wanted to stop the lesson because he was frustrated and tired. The instructors encouraged Philippi to continue skiing to the end of the run because the remaining terrain was “relatively easy,” and there was “no place to stop or stand.” The complaint alleges that “following the instructions of one of the individual Defendants, Plaintiff entered onto a narrow, steep, ungroomed slope which required numerous turns to navigate. Plaintiff [**5] could not see obstacles on this slope until he was upon them and too late to avoid them. During this portion of the instruction Plaintiff fell and severely injured his right leg and knee. . . .”

[HN2] Under section 24-15-10(B) of the Ski Safety Act, a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The Act goes on to state that a skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing areas, including any injury caused by . . . variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees or other forms of forest growth or debris . . . .

[HN3] The Act specifically excludes from the scope of a skier’s assumption of risk “any injuries . . . resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 [of the Act].” Id.

Philippi maintains that even though he assumed the obvious and necessary risks associated with skiing, including any injury caused by variations in terrain, the risks he encountered were not “obvious and necessary” [**6] to him as a novice skier. The Act imposes an affirmative duty on ski area operators “to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Id. 24-15-7(I). Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope. Thus, Philippi alleges that under section 24-15-7(I) of the Act, the defendants had a duty to warn him of the obstacles of the lower portion of the ski slope — obstacles “which were not plainly visible and which created an immediate hazard to [Philippi] and the skiing public.”

In response to the defendants’ argument in support of summary judgment that the defendants owed no duty to Philippi, Philippi bore the burden of making a showing sufficient to establish the existence of the defendants’ duty. See High Plains Natural Gas v. Warren Petroleum Co., 875 F.2d 284, 290-91 (10th Cir. 1989). [HN4] “The party resisting [summary judgment] may not rest on the bare allegations [**7] or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.” Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989).

Philippi claims that the deposition testimony and affidavits, along with facts alleged in his complaint, demonstrate a genuine issue of material fact concerning the defendants’ violation of section 24-15-7(I) of the Act. Philippi points out that, despite the instructors’ awareness of Philippi’s inability [*1495] to master even the simplest skiing maneuvers, the instructors “failed to help” and “failed to warn” Philippi of the risks of the lower portion of the Bambi trail. Further, Philippi made some showing that the defendants were aware that novice skiers had “problems” on the portion of the trail on which Philippi’s injury occurred. In addition, Philippi points to the failure of the Sipapu ski instructor’s manual to advise the instructors of the need to warn students of dangers and alert them to safety considerations. Philippi argues that reasonable minds could differ on whether these circumstances give rise to a duty on behalf of the defendants and, therefore, that the issue should [**8] be left to the finder of fact.

[HN5] Under New Mexico law, however, the question of whether a defendant owes a duty to a particular plaintiff is a question of law to be determined by the court. Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 (N.M. 1990); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 729 (N.M. 1984). Under section 24-15-7(I) of the Ski Safety Act, the defendants only have the duty to warn of or correct “particular hazards or dangers.” Philippi cannot rest on the bare allegation in his amended complaint that the defendants were aware of and failed to warn of “particular hazards or dangers.” Nothing in Philippi’s amended complaint, deposition or affidavits identifies any “particular hazard or danger” known to the defendants. Philippi merely asserts that his injury was caused by the defendants’ failure to warn him individually of the general conditions of the terrain on the lower portion of the beginner slope. Allegations of “thin and bare” terrain on a “narrow, steep and ungroomed” slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi. Likewise, allegations of the defendants’ knowledge of injuries [**9] to novice skiers on that same portion of the slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi.

The purpose of the Ski Safety Act is to define “those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes and for which there can be no recovery.” N.M. Stat. Ann. 24-15-2. Philippi assumed the risk for variations in terrain, id. 24-15-10, and Philippi had the duty to ski within the limits of his own ability. Id. Section 24-15-13 of the Act clearly states that a skier cannot recover for injuries or damages resulting from the skier’s own violation of his duties, as set forth in section 24-15-10. In our view, the Act allocates to the skier the risks for the type of injury Philippi alleges. In light of the language and purpose of the New Mexico Ski Safety Act, we conclude as a matter of law that [HN6] the scope of the duty imposed on ski operators in section 24-15-7(I) of the Act is not broad enough to encompass the duty to provide a general warning to a novice skier that, because of the skier’s limited abilities, portions of a beginner [**10] slope may be dangerous.

The motion to certify questions of state law is DENIED and the order of the district court is AFFIRMED.

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Attractive Nuisance cases are rare, even rarer when it involves a ski area and ski lessons, let alone a collision case

This is an early collision case and shows the development of alpine ski collision cases. This case also examines how courts review the Colorado Ski Safety Act and whether it conflicted with Colorado’s Premise Liability Statute.

Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

Plaintiff: James C. Giebink and Roxanne Johnson-Giebink, as parents and natural guardians of Michael Giebink, a minor; James C. Giebink, individually and Roxanne Johnson Giebink, individually, Plaintiffs

Defendant: Robert Fischer, as parent and natural guardian of Kevin Fischer, a minor; Robert Fischer, an individual and Aspen Skiing Corporation, a Colorado corporation, aka Aspen Skiing Company, and Jennifer Catherine Lang, Defendants

Plaintiff Claims:

Defendant Ski Area: negligent maintenance of the premises; C.R.S. 13-21-115, alleging that ASC “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers; and,

Under an attractive nuisance theory.

Defendant Ski School is liable for the negligent supervision of Michael by its agents and/or employees during the course of Michael’s ski lesson; and,

For negligent supervision and instruction of Michael while enrolled in the ski school.

Defendant Defenses: Colorado Skier Safety Act

Holding: partially for the plaintiff and for the defendant

This case was filed in federal district court gave rise to this decision based on motions to dismiss filed by the defendants’ ski area and ski school. The motions were an attempt to dismiss the majority of the plaintiff’s claims, to weaken their position and their case.

The defendant was skiing at Snowmass Mountain Resort when the defendant allegedly collided with the plaintiff. At the time of the collision, the plaintiff was enrolled in a ski lesson with the defendant ski school. The defendant skier was “lured” to a roll or jump on the slope which he went over colliding with the plaintiff. It was this roll that was defined as the property creating the attractive nuisance.

This was a different approach to attractive nuisance. Attractive nuisance is normally used to recover from a landowner when something on the land attracted the minor on to the land resulting in the minor being injured. Here the minor who was attracted to land, was legally on the land and caused injury to another.

The court classified the plaintiff as an invited guest and customer of Snowmass. This definition took in both statutes the court was going to have to decide in this case, the Colorado Ski Safety Act and the Colorado’s Premises Liability Statute’

Summary of the case

The court first looked at the plaintiff’s allegations that the Colorado Ski Safety Act violated Colorado’s Premises Liability Statute and as such was unconstitutional. Under the Premises Liability Statute, the duty owed to the plaintiff would be as a business invitee which is the highest degree of care owed to someone on your land and a much higher degree of care than required under the ski safety act. The premise’s liability statute defines the liability of a business invitee as:

If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers, which are not ordinarily present on property of the type involved and of which he actually knew.

The court found the statutes did not conflict because statutes were directed at different types of “dangerous activities and conditions.”

The court then reviewed the plaintiff’s argument that the defendant ski area failed to protect the plaintiff from dangers it should have known. The claim was based on a statute that requires actual knowledge. In this case, it means the defendant would have to have known the defendant skier was going to collide with the plaintiff. The knowledge required was more than foreseeable; it had to be actual to create liability.

The Ski Safety Act imposes specific duties upon ski operators as a means of protecting skiers against dangerous conditions that are commonly present at ski areas. In general, it does not protect against dangers arising from conditions or activities which are not ordinarily present at ski areas.

In contrast, the premises liability statute imposes liability against all landowners for conditions, or activities conducted on, or circumstances existing on his or her property. “If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.”

Not to hold this way, the court stated, it would subject ski area operators to greater liability than other landowners. Because the plaintiff failed to make any claims under the Ski Safety Act, only claims under the Premises Liability Act the plaintiff was out on his negligence claims. Without the Premises Liability Act to support the claims, the claims failed when the Premises Liability Act was held not to supersede the Ski Area Safety Act.

However, the court reasoned the plaintiff’s claims of negligent supervision were not based on the premise’s liability statute those claims were allowed to continue. “Instructing people in the sport of skiing is not inherently related to the land.”

The attractive nuisance claims were also dismissed.

The purpose of the doctrine is to protect children from hazards, which tend to attract them onto property. By allowing the doctrine to survive the enactment of the premise’s liability statute, the Legislature evidenced an intent to give children under the age of fourteen protections beyond that which is now available to other persons. This protection logically should extend to children, regardless of their status as a trespasser, licensee, or invitee.

The doctrine only applies to features on the land that are unnatural and unusual.

The doctrine requires that the object be unnatural and unusual. This limitation protects landowners from liability for conditions, which are present on their property of which children should reasonably recognize the associated dangers.

Because the roll was natural and not unusual, the roll was not an attractive nuisance.

A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to  them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger.  Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado.

The court dismissed the claims based on conditions of the land, but not those based on general negligence that were not based on the land.

So Now What?

This case has little direction for ski areas. However, it is a fundamental building block in Colorado law for the ski industry. The case also shows how a court determines which of two statutes will be controlling and how that decision is made by the courts.

The legal doctrine of attractive nuisance is also fading and not used much anymore. However, this case is a good analysis of the attractive nuisance doctrine. Here you can see that unnatural things on your land, which attract minors, under the age of 14, that causes injury to the minor can hold the landowner liable. Normally, a landowner would not be liable in this situation to a trespasser.

What do you think? Leave a comment.

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Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

James C. Giebink and Roxanne Johnson-Giebink, as parents and natural guardians of Michael Giebink, a minor; James C. Giebink, individually and Roxanne Johnson Giebink, individually, Plaintiffs, v. Robert Fischer, as parent and natural guardian of Kevin Fischer, a minor; Robert Fischer, an individual and Aspen Skiing Corporation, a Colorado corporation, aka Aspen Skiing Company, and Jennifer Catherine Lang, Defendants

Civil Action No. 88-A-766

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

March 22, 1989, Decided

March 22, 1989, Filed

COUNSEL: [**1] Scott R. Larson, Esq., Scott R. Larson, P.C., Denver, Colorado, Attorney for Plaintiffs.

Thomas E. Hames, Esq., Inman, Erickson & Flynn, P.C., Denver, Colorado, Attorney for Defendants Fischers.

Paul D. Nelson, Esq., Hancock, Rothert & Bunshoft, San Francisco, California, Scott S. Barker, Esq., Mary D. Metzger, Esq., Perry L. Glantz, Esq., Holland & Hart, Englewood, Colorado, Attorneys for Defendants Aspen Skiing Co. and Jennifer Catherine Lang.

JUDGES: Alfred A. Arraj, United States District Judge.

OPINION BY: ARRAJ

OPINION

[*1013] MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS

ALFRED A. ARRAJ, UNITED STATES DISTRICT JUDGE.

This matter is before the court on defendants Aspen Skiing Company’s (“ASC”) and Jennifer Catherine Lang’s (“Lang”) Motion to dismiss the Third, Fifth, Sixth, Seventh and Portions of the Fourth Claim For Relief Contained in Plaintiffs’ Second Amended Complaint. This is the second motion to dismiss filed in this case.

In order to understand the procedural posture of this motion, it is helpful to first set out the factual events upon which plaintiffs’ claims arose. According to plaintiffs, defendant Kevin Fischer, minor son of defendant Robert Fischer, collided with plaintiff Michael Giebink (“Michael”) in a skiing accident at Snowmass Ski Area on or about March 29, 1988. As a result, Michael was seriously injured. At [**2] the time of the accident it is alleged that Michael was an invited guest and customer at Snowmass Mountain Resort which is owned by ASC.

Plaintiffs’ Third Claim in its Second Amended Complaint is based upon ASC’s alleged negligent maintenance of the premises. Plaintiffs’ Fourth Claim is apparently pled under C.R.S. 13-21-115, alleging that ASC “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.” Second Amended Complaint para. 3 at 4. Plaintiffs’ Seventh Claim is also based upon the condition [*1014] of ASC’s premises under an attractive nuisance theory.

Plaintiffs further claim that Michael was enrolled in the Snowmass Ski School at the time of his accident. Defendant Jennifer Lang, an employee of ASC, was the skiing instructor. Plaintiffs’ Fifth Claim asserts that ASC is liable for the negligent supervision of Michael by its agents and/or employees during the course of Michael’s ski lesson. Plaintiffs’ Sixth Claim is against Lang, individually, for negligent supervision [**3] and instruction of Michael while enrolled in the ski school.

In its first motion to dismiss, defendant ASC moved to dismiss those of plaintiffs’ claims which were pled under theories of common law negligence. Defendant argued that C.R.S. § 13-21-115, the Colorado premises liability statute, abrogated common law claims and that the statute was plaintiffs’ exclusive means of remedy. Plaintiffs opposed dismissal on several grounds, including their contention that C.R.S. § 13-21-115 was unconstitutional. At a hearing held on July 15, 1988, this court denied ASC’s first motion without prejudice. Certification of the constitutional questions raised by plaintiffs was made to the Colorado Supreme Court on November 1, 1988. The Supreme Court declined to answer the certified questions on December 12, 1988.

The present motion to dismiss was filed January 24, 1989. In it, defendants move for dismissal of the Third, Fifth, Sixth and Seventh Claims and portions of the Fourth claim as contained in plaintiffs’ Second Amended Complaint. Defendants renew their argument that C.R.S. § 13-21-115 is plaintiffs’ exclusive remedy. They conclude that because § 13-21-115 abrogates common law claims against [**4] landowners, that plaintiffs’ Third, Fifth, and Sixth Claims, founded on common law negligence theories, fail to state a claim upon which relief can be granted. Defendants also urge this court to dismiss the Seventh Claim because it is admitted that Michael was not a trespasser, and, according to defendants, the doctrine of attractive nuisance only applies to trespassers. Finally, defendants argue that the Fourth Claim should be dismissed to the extent that, contrary to § 13-21-115, the complaint implies that liability may be imposed against a landowner for failure to exercise reasonable care to protect an invited plaintiff against dangers of which it “should have known.”

ANALYSIS

I) “Conflict” between the Colorado Ski Safety Act and Premises Liability Statute.

It is plaintiffs’ position that the premises liability statute, C.R.S. § 13-21-115, does not apply to this case involving a skiing accident because the Colorado Ski Safety Act (“Ski Safety Act”), C.R.S. §§ 33-44-101 to -111, is a specific statute which applies to ski areas and prevails over the general premises liability statute which applies to “any civil action brought against a landowner.” § 13-21-115(2). Plaintiffs contend [**5] that the Ski Safety Act authorizes negligence actions, and to the extent that § 13-21-115 abrogates common law negligence claims there is a conflict. Consequently, plaintiffs conclude that the specific statute prevails and that their negligence claims are viable under the Ski Safety Act.

My analysis begins with [HN1] C.R.S. § 2-4-205, which provides in full:

“If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.”

It is the court’s duty to construe statutes to avoid inconsistency if it is reasonably possible. Marshall v. City of Golden, 147 Colo. 521, 363 P.2d 650, 652 (1961). In the instant case the two statutes may reasonably be interpreted to avoid conflict. They apply to different activities and conditions.

The Ski Safety Act has an express purpose “to further define the legal responsibilities [*1015] of ski area operators 1 and their agents and employees; to define [**6] the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.” C.R.S. § 33-44-102. [HN2] The only responsibilities imposed upon operators by the Ski Safety Act relate to posting signs, §§ 33-44-106, 33-44-107, and providing lighting and other conspicuous markings for snow-grooming vehicles and snowmobiles. C.R.S. § 33-44-108. “A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-710(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” C.R.S. § 33-44-104(2). Thus, the duties imposed upon ski operators by the Ski Safety Act, a breach of which constitutes actionable negligence, concern a very limited number of specifically identified activities and conditions.

1 “‘Ski area operator’ means ‘operator’ as defined in section 25-5-702(3), C.R.S., and any person, partnership, corporation, or other commercial entity having operational responsibility for any ski areas, including an agency of this state or a political subdivision thereof.” C.R.S. § 33-44-103(7).

[**7] The Ski Safety Act imposes specific duties upon ski operators as a means of protecting skiers against dangerous conditions that are commonly present at ski areas. See Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 678 (Colo. 1985) (“the legislature has attempted to identify those dangers which can reasonably be eliminated or controlled by the ski area operator.”). In general, it does not protect against dangers arising from conditions or activities which are not ordinarily present at ski areas. 2

2 Conceivably, a conflict could exist between the two statutes, as in a case where a ski operator fails to mark a man-made structure as required by § 33-44-107(7). If the structure was one not ordinarily present at a ski area, a conflict would exist. However, the instant case does not present the court with this situation.

In contrast, [HN3] the premises liability statute imposes liability against all landowners for conditions, or activities conducted on, or circumstances existing on his or her property. C.R.S. § 13-21-115(2). “If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover [**8] for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.” C.R.S. § 13-21-115(3)(c) (emphasis added). 3 Thus, it is clear that the statutes are directed at two different types of dangerous activities and conditions, ordinary and out of the ordinary.

3 It is the judge’s duty to determine which subsection of § 13-21-115(3) is applicable in each action. § 13-21-115(4). The parties do not dispute that if the premises liability statute does indeed control, that § 13-21-115(3)(c) is the applicable subsection.

In Calvert v. Aspen Skiing Company, 700 F. Supp. 520 (D. Colo. 1988), the court held that the two statutes did conflict and that the specific Ski Safety Act prevailed. Accordingly, the court denied the defendant’s motion to dismiss plaintiff’s negligence claims. The conflict, according to the court, was that the premises liability statute abrogates all common law claims for negligence while the Ski Safety Act does not. Id. at 522. However, the two statutes may be interpreted consistently in light of the different scope [**9] of activities and conditions addressed by each.

It would be contrary to the Legislature’s intent to expose ski operators to greater liability than other landowners. To sustain plaintiffs’ claims founded on negligence would have exactly that effect. The Colorado Supreme Court has addressed at least one of the Legislature’s purposes in enacting the Ski Safety Act, stating:

Indisputably, the ski industry is an important part of the Colorado economy. . . . The legislative history indicates that one of the purposes underlying the [presumption provided in § 33-44-109(2) which imposes a presumption that the [*1016] responsibility for collisions by skiers with any person, natural object, or man-made structure marked in accordance with the Act is solely that of the skier and not the ski area operator] is to reduce the number of frivolous lawsuits and, accordingly, the rapidly rising cost of liability insurance accruing to ski area operators.

Pizza, 711 P.2d at 679 (citation omitted). The Legislature intended to protect ski operators from the increasing burden of litigation by passing the Ski Safety Act. There is no reason to believe that it intended to single out ski operators as a subgroup [**10] of landowners who would be held to a higher standard of care.

While the Ski Safety Act does not abrogate common law causes of action for negligence, neither does it expressly or implicitly create a general negligence action for all injuries sustained at ski areas. In the present case plaintiffs have not alleged any facts that would be actionable as a violation of the specific duties imposed upon ski operators by the Ski Safety Act. Their common law negligence claims, therefore, cannot be sustained under the umbrella of the Act. 4

4 Defendants pose a second argument which leads to the same conclusion. The premises liability statute was adopted subsequent to the Ski Safety Act and contains the “manifest intent” to apply to “any civil action.” C.R.S. § 13-21-115(2) (emphasis added). Accordingly, the premises liability statute, which expressly abrogates common law claims, would prevail even if the two statutes did conflict. C.R.S. § 2-4-205.

II) Premises Liability Statute

I must now consider to what extent the premises liability statute applies to plaintiffs’ claims. The language of the statute appears to embrace a broad range of conditions and activities that exist or are [**11] conducted on a landowner’s property. C.R.S. § 13-21-115(2). However, the court in Geringer v. Wildhorn Ranch, Inc., 706 F. Supp. 1442 (D. Colo. 1988), noted that [HN4] “the statutory classification ‘activities conducted or circumstances existing on such property’ must be read narrowly with careful regard for the intent of the legislature to re-establish common law distinctions in the law of premises liability.” Id. at 1446.

In Geringer, the plaintiff brought a wrongful death action for the death of her husband and son in a drowning accident which occurred at the defendant’s guest ranch. The two drowned during a boating accident involving a peddleboat supplied by the defendant corporation. The court struck plaintiff’s claims founded on the premises liability statute. Following a jury verdict in favor of the plaintiff, the defendants made motions for judgment notwithstanding the verdict, for new trial, and for amended judgment. Defendants contended that they were prejudiced by the trial court’s failure to instruct the jury in accordance with the premises liability statute which provides a more difficult standard for plaintiffs to overcome. Defendants argued that the [**12] premises liability statute was plaintiff’s exclusive remedy. The court disagreed:

Traditionally, the activities for which a defendant is liable as a landowner are inherently related to the land — construction, landscaping or other activities treating the land. . . .

The causation evidence in this case focused on defendants’ maintenance of the peddleboats and on defendants’ knowledge of their condition following purported repairs. The duty litigated in this case was that of a supplier of chattel to provide its user with chattel that was not defective. . . . The statute does not reflect an intention to extend the application of premises liability doctrine to the negligent supply of chattel by a landowner.

Id. at 1446. The distinction between activities “inherently related to the land” and other activities which do not fall within the scope of the premises liability statute logically follows from the court’s conclusion that “the statute does not establish a feudal realm of absolute protection from liability for simple negligence based only on a defendant’s status as a landowner.” [*1017] Id. at 1446. 5

5 To hold otherwise would shield all types of negligent activities from the negligence standard, such as in a case where a doctor negligently treats a patient at his privately owned clinic. This result could not have been intended by the Legislature.

[**13] In the present case plaintiff’s Fifth and Sixth Claims are based upon the alleged negligent supervision of Michael during the course of his skiing instruction. Instructing people in the sport of skiing is not inherently related to the land. Therefore, plaintiffs’ Fifth and Sixth Claims should not be dismissed.

On the other hand, plaintiffs’ Third Claim is founded on defendant’s negligent maintenance of conditions at the ski area. Conditions of property clearly fall within the scope of the premises liability statute. C.R.S. § 13-21-115(2). Therefore, the Third Claim must be dismissed for failure to state a claim upon which relief can be granted.

III) Constitutionality of the Premises Liability Statute

Plaintiffs contest the constitutionality of C.R.S. § 13-21-115 on several grounds. [HN5] Statutes are presumed constitutional and the plaintiff, as the party attacking the statute, must prove the statute unconstitutional beyond a reasonable doubt. Bedford Motors, Inc. v. Harris, 714 P.2d 489, 491 (Colo. 1986).

Plaintiffs argue that the phrase “deliberate failure to exercise reasonable care,” as provided in C.R.S. § 13-21-115(3)(c), is unconstitutionally vague. It is plaintiffs’ position [**14] that the terms “deliberate” and “reasonable care” are contradictory. I disagree.

The premises liability statute is basically an economic regulation, designed to limit the liability of landowners. Therefore, the vagueness standard which must be applied in this case is less exacting than in a case involving a penal statute or laws regulating first amendment rights. Pizza, 711 P.2d at 676.

“Deliberate” is a common word used frequently in every-day experience and readily understood. [HN6] “The probable legislative intent in using such a word may be determined by resorting to a standard dictionary.” Pizza, at 676. Webster’s New World Dictionary (2nd ed. 1972) defines “deliberate” as “carefully thought out and formed, or done on purpose; premeditated; careful in considering, judging, or deciding; not rash or hasty.” [HN7] “Reasonable care” is obviously a common tort standard associated with negligence which requires a degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. See Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337, 339 (1975). Thus, in order to incur liability under § 13-21-115(3)(c), a landowner must purposely fail to act [**15] as an ordinarily prudent person would in a like situation.

Plaintiffs also argue that the statute denies them a right to a remedy for injury as guaranteed by [HN8] Article II, Section 6 of the Colorado Constitution. Article II, Section 6 provides:

Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

As noted in Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698, 702 (1967), this provision is a mandate to the judiciary, not the legislature. “The power of the legislature to abolish substantive common law rights including those vouch-safed by the common law of England, in order to attain a permissible legislative object, has already been decided by this court. . . .” Id. at 470. Thus, the Legislature’s enactment of § 13-21-115 does not violate the Colorado Constitution.

Next plaintiffs argue that the statute violates [HN9] Article V, Section 25 of the Colorado Constitution which prohibits the general assembly from passing special laws for the benefit of any corporation, association or individuals. The constitutional inhibition against class legislation [**16] arises “when the effect of the law is to prohibit a carrying on of a legitimate business [*1018] or occupation while allowing other businesses or occupations not reasonably to be distinguished from those prohibited to be carried on freely.” Dunbar v. Hoffman, 171 Colo. 481, 468 P.2d 742, 745 (1970). However, a statute is not special when “it is general and uniform in its operation upon all in like situation.” McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691, 693 (1962). The premises liability statute applies uniformly to all landowners to limit liability for injuries resulting from conditions and activities which are inherently related to ownership of property. It is, therefore, not a special law.

Plaintiffs’ equal protection challenge also fails. [HN10] The statutory classification need only be reasonably related to a legitimate state objective in order to pass constitutional muster because no fundamental right or suspect class is involved. Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827 (Colo. 1982). In this case the Legislature could have reasonably enacted the premises liability statute as a means of reducing liability of landowners for certain injuries occurring on their property. The Colorado [**17] Supreme Court has recognized that the Legislature has a legitimate interest in protecting the state economy. Pizza, 711 P.2d at 679. Providing limited protection to landowners is reasonably related to that end.

IV) Plaintiffs’ Fourth Claim

Defendants argue that plaintiffs’ Fourth Claim should be dismissed to the extent that it alleges that defendant ASC is liable for failure to exercise reasonable care to protect Michael against dangers of which it “should have known.” 6 Plaintiffs’ Fourth Claim is based on § 13-21-115(3)(c), which, by its express terms, requires actual knowledge. Plaintiffs’ Fourth Claim is dismissed to the extent that it seeks to impose liability for dangers of which ASC should have known.

6 Plaintiffs’ Fourth Claim alleges that ASC is liable because it “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.”

V) Attractive Nuisance

Finally, defendants move to dismiss plaintiffs’ Seventh Claim which is founded upon the doctrine of attractive [**18] nuisance, 7 arguing that it only applies to situations involving trespassers, and that according to plaintiffs’ allegations Michael was not a trespasser. 8 In an attempt to strike a reasonable compromise between the conflicting interests between the freedom of land use and the protection of children, courts have recognized the attractive nuisance doctrine. [HN11] The doctrine imposes a higher standard of care on landowners toward children than would otherwise be owed to a trespasser. 9

7 In their Seventh Claim, plaintiffs accuse defendant ASC of maintaining an unreasonably dangerous and hazardous condition in the form of a roll jump. The roll jump is made entirely of earth. Skiers use it to perform aerial maneuvers.

8 The Colorado Legislature clearly provided that attractive nuisance, as it applies to persons under fourteen years of age, is not abrogated by the premises liability statute. C.R.S. § 13-21-115(2).

9 Prior to the Colorado Supreme Court’s decision in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), landowners generally owed no duty to make or keep property safe for trespassers. See Staley v. Security Athletic Association, 152 Colo. 19, 380 P.2d 53, 54 (1963).

[**19] The purpose of the doctrine is to protect children from hazards which tend to attract them onto property. By allowing the doctrine to survive the enactment of the premises liability statute, the Legislature evidenced an intent to give children under the age of fourteen protection beyond that which is now available to other persons. This protection logically should extend to children, regardless of their status as a trespasser, licensee, or invitee. See W. Prosser & W. Keeton, Prosser and Keeton on Torts, § 59 at 402 (5th ed. 1984) (“In any case where the child could recover if he were a trespasser, he can recover at least as well when he is a licensee or an invitee [*1019] on the premises.”); Restatement (Second) of Torts § 343B (1977) (“In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee.”); State v. Juengel, 15 Ariz. App. 495, 489 P.2d 869, 873 (1971). See also CJI-Civ. 2d 12:6A (Supp. 1988).

However, plaintiffs’ Seventh Claim fails for several other reasons. Plaintiffs’ counsel made [**20] it clear at the March 17, 1989 hearing that it was not Michael that was lured to the accident scene by the roll jump; it was Kevin Fischer, the other youth allegedly involved in the collision, who was drawn to the location by the roll jump. The doctrine of attractive nuisance simply does not apply under these facts.

A second, related argument, also leads me to the conclusion that the doctrine should not be applied in this case. [HN12] The doctrine requires that the object be unnatural and unusual. This limitation protects landowners from liability for conditions which are present on their property of which children should reasonably recognize the associated dangers. See Esquibel v. City and County of Denver, 112 Colo. 546, 151 P.2d 757, 759 (1944) (attractive nuisance doctrine did not apply where child was injured while climbing on automobile bodies piled in an unstable heap). The Esquibel court cited the Restatement of Torts § 339 Comment on Clause (c):

A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to [**21] them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado.

Other conditions which have been held to be common and obvious include an artificial pond, Phipps v. Mitze, 116 Colo. 288, 180 P.2d 233 (1947), an icy slope used for sledding, Ostroski v. Mount Prospect Shop-Rite, Inc., 94 N.J. Super. 374, 228 A.2d 545 (1967), a sand pile, Knight v. Kaiser Co., 48 Cal. 2d 778, 312 P.2d 1089 (1957), and a steep bluff, Zagar v. Union Pacific R. Co., [**22] 113 Kan. 240, 214 P. 107 (1923).

Defendants in this case had a right to expect youngsters who were actively participating in the sport of skiing to understand the dangers of conditions such as the roll jump. The dangers associated with the roll jump are apparent, not latent. It is not an “unusual condition.” Therefore, the doctrine of attractive nuisance is not available to the plaintiffs.

CONCLUSION

Accordingly,

IT IS ORDERED that plaintiffs’ Third and Seventh Claims be, and the same hereby are, DISMISSED with prejudice.

IT IS FURTHER ORDERED that plaintiffs’ Fourth Claim, to the extent that it seeks to impose liability for dangers of which ASC ‘should have known,’ be, and the same hereby is, DISMISSED with prejudice.

IT IS FURTHER ORDERED that defendants’ motion to dismiss to the extent that it requests dismissal of plaintiffs’ Fifth and Sixth Claims be, and the same hereby is, DENIED.

DATED at Denver, Colorado this 22nd day of March, 1989.

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Tennessee has a Ski Statute that must be construed narrowly or if you don’t understand skiing, ignored

However, the court rules that if parent signs a release the parent cannot recover for the child’s injures, even though the child still can

Albert v. Ober Gatlinburg, Inc., 2006 U.S. Dist. LEXIS 100150

Plaintiff: Jaren Albert, a minor bn/f Jarrod Albert, and Jarrod Albert

Defendant: Ober Gatlinburg, Inc., and Smoky Mountain Snow SPORT School, Inc.,

Plaintiff Claims: negligence

Defendant Defenses: Against Defendant Ski Area, Ober Gatlinburg Inc.: (1) Jaren Albert was guilty of negligence as a matter of law which bars recovery for her injuries; (2) Jaren’s claim is barred by the Tennessee Ski Area Safety and Liability Act (SASLA), T.C.A. § 68-114-101; and (3) Ober is not guilty of any negligence which proximately caused or contributed to Jaren’s accident and injuries.

Against the Ski School Smoky Mountain Snow Sport School, Inc.,: (1) his claims are solely derivative of the claims of Jaren Albert and that failure of her claims precludes any recovery by Jarrod Albert; and (2) that Jarrod Albert signed a valid release agreement contractually preventing him from bringing a claim against the ski operator.

Holding: For the defendants against the parent and for the child on all other motions.

The plaintiff was a 15-year-old girl who was skiing at the defendant’s ski area when she was injured. The day before she had skied at the ski area and taken a lesson from the defendant ski school. As the second day progressed, she started skiing more difficult runs and eventually lost control, sat down and was injured when her ski apparently hit her in the head.

A witness to the plaintiff’s accident testified “She was coming down; she slipped and started sliding on her butt; she tried to stop sideways; she started going head over heels for about 10 feet, then her ski came off, hit her in the head, and she was out.”

She sued the ski school and the ski area. The plaintiff hired an expert who testified that the defendant ski area:

…failed to use reasonable care in deciding to open the ski resort on the day of the accident, failed to close some slopes or warn of ultra hazardous conditions on the slope on which this accident occurred, and failed to designate the slope on which the accident occurred as ultra hazardous, ice-covered, and/or “black diamond,” thus breaching its duty to operate in conformity with the SASLA.

When slope conditions change from marginal to extra-hazardous in nature, Mr. Isham states it becomes the obligation and duty of the ski operator to post warnings at the top of each trail notifying skiers that the slopes have changed and that they demand extra caution and attention. Such warnings should have also been posted at the slope condition board at the base of the mountain to provide additional information to skiers.

Ice or bare spots on a ski slope are ultrahazardous?

Both defendants filed motions for summary judgment. The plaintiff filed a motion requesting oral arguments on the defendant’s motions for summary judgment, which was denied. The court then ruled on the defendants’ motions for summary judgment.

Summary of the case

Claims against the ski area

The court first looked at the claims and arguments against the defendant ski area. The ski area argued that the plaintiff should not have been on the black diamond ski slope, and that is what created her injury.

…was an inexperienced skier, yet she skied on a slope which she knew was designated as “most difficult” and rated as a “black diamond” slope; and she ignored the posted signs warning her that the slope she was preparing to ski on was not suited to her ability. Despite that knowledge, Ms. Albert skied down Mogul Ridge and suffered a fall. Defendant states that Ms. Albert was not skiing within the limits of her ability and she apparently failed to maintain control of her speed and course, resulting in her fall and injury.

The defendant ski area also argued that the Tennessee Ski Area and Liability Act (SASLA) barred the plaintiff’s suit because a skier assumed the risk and legal responsibility of skiing under the act. The court stated that the Tennessee Court of Appeals had reviewed the statute and held that the act did not protect the operators from their own negligence or provide them with blanket immunity.

The plaintiff’s then made a simple argument to which the court gave credence.

Plaintiffs state that Ober Gatlinburg owed a duty of reasonable care under the circumstances, in addition to their statutory duties, not to expose a skier to risks at the resort which were not an inherent risk of skiing.

Because there was a difference of opinion, a material fact to which the parties disagreed, summary judgment could not be granted to the ski area.

Claims against the ski school

The ski school’s major argument was the lesson ended the day before so the school could not be liable for injuries that occurred after the lesson ended. The school also argued that the school had no control over the actions against the plaintiff after the lesson ended.

The plaintiff countered by arguing the lesson was incomplete. The plaintiff argued the lesson was 5-10 minutes, and she learned to stop and to turn. The school argued the lesson was longer. (I find it hard to believe that a beginner could learn to snowplow and turn in 10 to 15 minutes.)

Here again the court found that because there was a disagreement as to whether or not the lesson was adequate the ski school would not be dismissed from the suit.

Release signed by the plaintiff, parent of the injured minor.

The plaintiff and father of the injured girl signed a release. There was no reference as to how or why the release was signed. It was put forth in the decision and is only one real paragraph.

Under Tennessee’s law the release would not work to stop a claim by a child. However, Tennessee’s law allowed a release signed by a parent to stop claims for the losses the parent suffered because of injuries to the child.

This court has previously found the release void as to Jaren Albert because it is well settled in Tennessee that a guardian may not waive the rights of an infant or an incompetent. However, the Tennessee courts have held that a parent signing a release like the one at issue here, is precluded from recovering for the loss of services and medical expenses resulting from the child’s injury.

The court then stated:

He further agreed to indemnity defendants “for any claims brought by my minor child as a result of any injuries or damages sustained while engaging in the activity of snow skiing.” Therefore, the release is valid with respect to Jarrod Albert’s right to recover for loss of services and medical expenses for his child.

Whether or not the court is defining indemnification such that the defendants could recover for any losses is not clarified in the decision. Nor based on other Tennessee laws would I guess it was possible. However, courts do not throw around such legal terms carelessly.

Based on the release signed by the plaintiff the court stated:

… the Tennessee courts have held that a parent signing a release like the one at issue here, is precluded from recovering for the loss of services and medical expenses resulting from the child’s injury.

The defendant’s motions concerning the minor plaintiff were denied. The defendant’s motions concerning the claims of the plaintiff parent were granted. The case was continued for additional issues and probably trial on the claims of the minor.

So Now What?

The Tennessee Court of Appeal’s decision that this court relied upon gutted the Tennessee Ski Area and Liability Act (SASLA). If the act does not protect suits from the negligence of the ski area and the inherent risks of skiing are no enumerated, the act provides no benefit from suit. Most times a ski area statute provides a defense by saying that the skier assumes the risk, as defined by the statute. In this case, the risk to be assumed by the skier would have been hitting an icy patch or a bare spot. Without that protection of risks enumerated in a statute, the ski area can be held negligent for not warning of the ice or bare spot or not correcting the conditions within the area.

However, the SASLA has no list of risks that are assumed by a skier and only the blanket statement quoted by the court.

“Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing.”

Once a court decided the statute was to be narrowly construed and would not operate to prevent suits for negligence, there is little to zero value in the statute.

The decision about the very weak release is interesting. The court’s statements about the effect of the release lead to more interesting aspects of the case.

The rest of the case is going to be dependent upon the war of the experts. If the ski area and ski school could bring a credible expert to the witness stand to explain in ways, a jury could understand the ski area and ski school could win the case.

However, if the defendant’s credibility is blown at all, the outrageous claims of the plaintiff’s experts may hold water with a jury that does not understand skiing or Mother Nature.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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