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Non-governmental park not liable under Georgia Recreational Use Statute because cyclists failed to negotiate a barricade. The dangerous condition was open, obvious and visible to all including the deceased.

Because cyclists failed to look up and did not see the barricades in time, does not change the fact the barricades were visible for hundreds of feet.

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

State: Georgia; Court of Appeals of Georgia

Plaintiff: Nancy Amestoy

Defendant: Stone Mountain Memorial Association

Plaintiff Claims: (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

Defendant Defenses: Georgia Recreational Use Statute

Holding: For the Defendant at trial Court, Plaintiff on appeal 

Year: 2016

Summary

The Georgia Recreational Use Statute extends immunity to non-governmental landowners. Here a cyclist died after failing to look up and see barricades blocking a road. Because the barricades were open and obvious, the Recreational Use Statute protected the landowner from suit. 

Facts 

The deceased was on a bike ride. The road he was riding had been closed for a foot race. The closure was  accomplished by two saw horse barricades. The deceased in attempting to negotiate between them fell suffering head injuries, while wearing a helmet, and died.

…between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed  side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

It appeared to witnesses that the deceased did not look up until the last minute to see the barricades. 

…Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day. 

The plaintiff, wife of the deceased, sued for:

(1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual
knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades).

The defendant filed a motion for summary judgment stating it was not liable because of the Georgia Recreational Use Act. The plaintiff argued that the exception to the act applied, if the landowner of and did not warn of a dangerous condition. The Trial court agreed and the defendant immediately appealed that order. 

SMMA responded and filed a motion for summary judgment, contending that it was immune from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous.

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

The defendant appealed the decision based upon the facts that:

… (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was
open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law….

Under the Georgia Recreational Use Act, the landowner owes no duty of care to keep the premises safe for others entering the land for recreational purposes.

In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

There is a liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Under Georgia’s law:

…”willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental,  involuntary, inattentive, inert, or passive omission.” And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”  Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner  (SMMA) had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible con-sequences. Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property. Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.

The court held the plaintiff failed to produce any evidence to create a jury question on whether or not the condition was not apparent to those using the property, the third prong of the test.

The court cited witness statements and statements from the investigators that the barriers where visible at least for hundreds of feet. 

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious, as overwhelmingly demonstrated by the foregoing testimony and photographic evidence.

The Appellate Court reversed the trial court and granted the defendant’s motion for summary judgment based on the Georgia Recreational Use Statute

So Now What? 

The first take away is the Georgia Recreational Use Statute protects parks owned non-governmental landowners from suit. The second is, even though the statute has an exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity,” the landowner must have actual knowledge, not just constructive knowledge of the dangerous condition.

Here because the barricades were visible for hundreds of feet, the barricades did not constitute a dangerous condition. 

If you are a cyclist, look up once in a while. 

What do you think? Leave a comment.

 Copyright 2017 Recreation Law (720) 334 8529

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Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy, 337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

Stone Mountain Memorial Association v. Amestoy.

A16A0056.

COURT OF APPEALS OF GEORGIA

337 Ga. App. 467; 788 S.E.2d 110; 2016 Ga. App. LEXIS 358

June 21, 2016, Decided

HEADNOTES Georgia Advance Headnotes

(1) Torts. Real Property Torts. General Premises Liability. The wife of a bicyclist who died of a head injury after striking a barricade that had been placed across the road in a public park to protect runners in a road race failed to produce sufficient evidence to create a jury question as to the park owner’s actual knowledge that the barricades were not apparent to those using the property as required to prove an exception to immunity under OCGA § 51-3-25 (1) of the Recreational Property Act; the road was straight and open and the barricades were highly visible.

COUNSEL: Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, Kristine K. Hayter, Assistant Attorney General, for appellant.

Childers, Schleuter & Smith, William A. Parker, Jr., for appellee.

JUDGES: [***1] DILLARD, Judge. Phipps, P. J., and Peterson, J., concur.

OPINION BY: DILLARD

OPINION

[*467] [**111] Dillard, Judge.

Stone Mountain Memorial Association (“SMMA”) appeals from the trial court’s denial of its motion for summary judgment in a premises-liability and wrongful-death action brought by Nancy Amestoy following her husband Martin’s tragic death in a bicycling accident at Stone Mountain Park. Specifically, SMMA contends that the trial court erred in denying its motion for summary judgment because it is immune from liability under the Recreational Property Act (“RPA”).1 Because we agree with SMMA that the RPA immunizes it from liability, we reverse.

1 See OCGA § 51-3-20 et seq.; see also OCGA § 51-3-20 [HN1] (“The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.”).

Viewed in the light most favorable to Nancy Amestoy (i.e., the nonmoving party),2 the record reflects that between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that [***2] was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one-and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

2 See, e.g., Holcomb v. Long, 329 Ga. App. 515, 517 (765 SE2d 687) (2014).

The SMMA major stationed at these barricades manned the post for a few minutes after they were erected, but he left suddenly when [*468] overcome by an urgent need to use the restroom. While the major was in the restroom, the SMMA captain–who was stationed at a separate traffic-control post–saw two bicyclists maneuver around the barricades at the major’s post. Then, six or seven minutes later, Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike.3 Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day.

3 Nancy Amestoy alleges that her husband may [***3] have been attempting to avoid a collision with the barricades by trying to ride between them. Officers could not speak to Martin after the collision to ascertain his version of events because he was unconscious. But Nancy’s expert opined that “once [Martin] was aware of [the barricades,] his only path of travel was between the two barricades.”

Thereafter, Nancy Amestoy filed suit against SMMA in her capacity as surviving spouse and on behalf of Martin’s estate. In doing so, she asserted that SMMA (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades). SMMA responded and filed a motion for summary judgment, contending that it was immune [**112] from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous. The trial court did, however, [***4] certify the denial of SMMA’s motion for immediate review, and this Court granted SMMA’s application for interlocutory appeal. This appeal follows.

At the outset, we note that [HN2] on appeal from the denial of a motion for summary judgment, we conduct a de novo review of the record.4 [HN3] To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmovant, entitle the moving party to judgment as a matter of law.5 A defendant may do this by showing the trial court that the record [*469] reveals no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.6 Indeed, if there is no evidence sufficient to create a genuine issue of material fact as to “any essential element of the plaintiff’s claim, that claim tumbles like a house of cards.”7 With these guiding principles in mind, we turn now to SMMA’s arguments on appeal.

4 See Gayle v. Frank Callen Boys & Girls Club, 322 Ga. App. 412, 412 (745 SE2d 695) (2013) (“A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment[.]” (punctuation omitted)).

5 See id. [HN4] (“Summary judgment is proper when there is no genuine issue of material [***5] fact and the movant is entitled to judgment as a matter of law.” (punctuation omitted)).

6 See Farris v. First Fin. Bank, 313 Ga. App. 460, 462 (722 SE2d 89) (2011) [HN5] (“This burden is met by a defendant when the court is shown that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” (punctuation omitted)).

7 La Quinta Inns, Inc. v. Leech, 289 Ga. App. 812, 812 (658 SE2d 637) (2008) (punctuation omitted).

SMMA argues that the trial court erred in denying its motion for summary judgment based upon immunity under the RPA because (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition–i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard–was open and obvious as a matter of law, SMMA was entitled to summary judgment.

[HN6] In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.”8 In this regard, OCGA § 51-3-22 provides [***6] that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

8 Gayle, 322 Ga. App. at 413 (punctuation omitted). [HN7] The RPA applies when the property is “open to the public for recreational purposes and the owner does not charge an admission fee.” Id. at 414. It is undisputed between the parties that Stone Mountain Park is open to the public for recreational purposes and does not charge an admission fee. See OCGA § 51-3-21 (a) (” ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land.”); see also Hogue v. Stone Mtn. Mem. Ass’n, 183 Ga. App. 378, 380 (1) (358 SE2d 852) (1987) (holding that initial motor-vehicle fee was “a permit for the use of a vehicle in the park” and that “the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself”).

[HN8] Notwithstanding the RPA’s general provision for immunity from liability, there is an exception “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.”9 But as we have previously held, [***7] “willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive [*470] [**113] omission.”10 And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.”11 Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner (SMMA) had actual knowledge that (1) the property was being used for recreational purposes;12 (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible consequences.13 Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property.14 Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.15

9 OCGA § 51-3-25 (1); see also Gayle, 322 Ga. App. at 415.

10 Collins v. City of Summerville, 284 Ga. App. 54, 56 (643 SE2d 305) (2007) (punctuation omitted); accord Cooley v. City of Carrollton, 249 Ga. App. 387, 388 (547 SE2d 689) (2001); Spivey v. City of Baxley, 210 Ga. App. 772, 773 (437 SE2d 623) (1993).

11 Collins, 284 Ga. App. at 56 (punctuation [***8] omitted); accord Gayle, 322 Ga. App. at 415.

12 The parties do not dispute that the first prong of this test is satisfied.

13 See Gayle, 322 Ga. App. at 415 (listing the four requirements); Collins, 284 Ga. App. at 56 (same); Spivey, 210 Ga. App. at 773 (same); Quick v. Stone Mtn. Mem. Ass’n, 204 Ga. App. 598, 599 (420 SE2d 36) (1992) (same); see also Edmondson v. Brooks Cty. Bd. of Educ., 205 Ga. App. 662, 663 (423 SE2d 413) (1992) (noting that, in the fourth prong, ” ‘[t]his knowledge’ refers to the three previously listed facts of which the owner must have actual knowledge in order to be liable for ‘choosing not to guard or warn’ ” (punctuation omitted)).

14 See Collins, 284 Ga. App. at 56 (“Constructive knowledge is not sufficient, and no duty to inspect is imposed on the property owner.”); Ga. Dep’t of Transp. v. Thompson, 270 Ga. App. 265, 269 (2) (a) (606 SE2d 323) (2004) (“This test excludes either constructive knowledge or a duty to inspect.” (punctuation omitted)).

15 See, e.g., Lee v. Dep’t of Nat’l Res., 263 Ga. App. 491, 493-94 (3) (588 SE2d 260) (2003) (holding that, despite uncontroverted satisfaction of first prong, failure to satisfy other prongs was fatal to claim); Edmondson, 205 Ga. App. at 663 (noting that, in holding that RPA immunized defendant from liability, the issue of liability under the RPA is “resolved by a four-part test” and the defendants “rel[ied] on the absence of the third prong of the test”).

At the outset, [HN9] we reject any suggestion that the four-part test does not require actual knowledge as to each prong. Although we have not always been precise in our recitation of the analytical framework,16 the notion that actual knowledge is not required by the foregoing [***9] four-part test is belied by the plain language of the test adopted by this Court in McGruder v. Georgia Power Co.,17 by our [*471] explanation and application of the test in subsequent cases,18 and even by other jurisdictions that have construed the test employed in Georgia.19 (1) And here, Nancy [**114] Amestoy failed to produce any evidence to create a jury question as to the third prong of the test–that is, that SMMA had actual knowledge that the barricades were not apparent to those using the property.20 As the trial court noted in its order, the road leading up to the barricades is straight and open. Indeed, witnesses observed two other cyclists negotiate their bicycles around the barricades only minutes before Martin Amestoy’s accident. Additionally, not only does the photographic evidence demonstrate that the barricades were highly visible, but testimony by numerous SMMA public-safety personnel established that they believed this to be the case.

16 See Gayle, 322 Ga. App. at 415; Collins, 284 Ga. App. at 56; Norton v. Cobb Cty., 284 Ga. App. 303, 307 (3) (643 SE2d 803) (2007) (physical precedent only).

17 126 Ga. App. 562, 563-64 (1) (191 SE2d 305) (1972) (“In the context of the whole statute, it would seem that a wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving [***10] an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.”), reversed on other grounds by 229 Ga. 811 (194 SE2d 440) (1972); see also Ga. Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987) (adopting the four-part test as previously set forth in McGruder v. Ga. Power Co., and noting that “[a]lthough the test was turned into dicta by the Supreme Court’s ruling that the RPA was not applicable in that case, it is sound”).

18 See Ray v. Ga. Dep’t of Nat’l Res., 296 Ga. App. 700, 702 (1) (675 SE2d 585) (2009); Lee, 263 Ga. App. at 493-94 (3); Thompson, 270 Ga. App. at 269 (2) (a); S. Gwinnett Athletic Ass’n v. Nash, 220 Ga. App. 116, 119 (1) (469 SE2d 276) (1996); Spivey, 210 Ga. App. at 773; Quick, 204 Ga. App. at 599; Edmondson, 205 Ga. App. at 663; Warren, 183 Ga. App. at 867 (1).

19 Hendrickson v. Ga. Power Co., 80 FSupp2d 1374, 1379 (III) (B) (M.D. Ga. 2000) (acknowledging that this Court uses a four-part test, and reciting test so as to make clear that defendant must have “actual knowledge” as to the first three prongs); Ex parte City of Geneva, 707 So2d 626, 629 n.2 (Ala. 1997) (construing Alabama’s recreational-use statute and observing that “the four-part ‘actual knowledge’ test of [Ala. Code] § 35-15-24 [(which applies ‘actual knowledge’ to the first three prongs of test)] appears likely to be a codification of the test employed by the state courts of Georgia when determining whether a noncommercial recreational landowner may be liable for ‘willful … failure to guard or warn against a dangerous condition, use, [***11] structure, or activity.’ “).

20 See Ray, 296 Ga. App. at 702 (2) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

The testimony from SMMA personnel included that of a corporal who assisted in the investigation after the accident, and who testified that (1) the “barricades were plainly visible for quite a distance,” (2) the barricades were visible “for hundreds of feet,” (3) the sun was shining on the morning in question, and (4) there was “a great deal of visibility.” Likewise, an SMMA officer who performed an accident investigation, including taking various measurements to construct a to-scale diagram and [***12] conducting a “conspicuity test,” estimated that [*472] the barricades would have been visible from “a couple hundred yards” up Robert E. Lee Boulevard. More specifically, the major who was stationed at the barricades estimated that the distance at which they were visible would have been 200 to 250 feet, though he did acknowledge that on the morning in question, “[t]he way the sun was up, [a cyclist or motorist] would possibly [have] been looking into the sun.” Lastly, the SMMA captain calculated that the distance from the first line of sight to the barricades was one-tenth of a mile, or 528 feet, concluding that the barricades were “highly visible.” The captain also echoed other testimony that “[i]t was a clear day, the sun was out, [and] visibility was good.”

Finally, Nancy Amestoy’s expert testified that from his position and speed on a bicycle, Martin Amestoy likely would have seen the gap between the barricades when he was approximately fifteen feet away, giving him about one-half of a second to react. But when questioned about the distance from which the barricades themselves would have been visible, the expert testified that he did not “have an answer for that” and that he did not “know how far [***13] back they would have been seen,” though he opined that it would not have been “very far.” He also testified that he had no way of knowing what Martin Amestoy was doing “10, 20, [or] 50 feet prior to the barricades.”

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious,21 as overwhelmingly [**115] demonstrated by the foregoing testimony and photographic evidence.22 Indeed, as previously noted, there is no evidence [*473] that SMMA officials knew that the barricades were not apparent.23 Although Nancy Amestoy claims that SMMA stationed a major at the barricades to provide warnings to approaching motorists and bicyclists and that this officer had actual knowledge of the need to provide such warnings, there is no evidence to substantiate these assertions. Instead, the major testified that the objective of his post was to “turn the cars around, bicyclists around.” Additionally, the SMMA captain testified that the purpose of the major’s post was “to block the road, to keep cars from going down into that area where the people would be crossing” and “protect the walkers,”24 not to “protect [***14] bicyclists and cars.” And when further asked if there was “any interest in protecting the bicyclists or the vehicles from entering that area,” the captain responded that “[o]ur objective is to protect everybody in the park.” But this diplomatic answer is a far cry from testimony that would create a genuine issue of material fact as to whether SMMA officials had actual knowledge that the barricades themselves were not apparent–or open and obvious–to park users.

21 Cf. Turkett v. Cent. of Ga. Ry. Co., 117 Ga. App. 617, 617 (161 SE2d 362) (1968) (holding that court erred in dismissing petition alleging negligence when plaintiff collided with warning device placed in roadway by defendant while traveling in the dark, in the rain, and under circumstances of poor visibility; and obstruction was unlighted, obscured from plaintiff’s vision by its placement, and could not be seen until within 10 feet); Rogers v. Johnson, 94 Ga. App. 666, 666 (syllabus), 677 (1), 678 (3) (96 SE2d 285) (1956) (sustaining verdict for plaintiff when decedent was traveling roadway at night in car that collided with defendant’s vehicle, which was hauling house-trailer, nearly blocking the entire roadway after making a lefthand turn); Trammell v. Matthews, 84 Ga. App. 332, 338-39 (1) (66 SE2d 183) (1951) (holding that there was a question for the jury as to negligence when plaintiff alleged, inter alia, “that had the defendant placed proper warnings at the [***15] point where the detour went around the place where the bridge was out, the driver of the car … would not have passed the detour and gone through the partial road block and then into the place where the bridge was out,” and when it appeared from the plaintiff’s petition “that the way ahead of the driver of this car was not clear, that it was yet dark, and the road was not straight as one approached this partial road block from the [s]outh; that the detour was the same color as the paved road; [and] that the partial road block was not sufficient and adequate to prevent one from assuming that the road could be used”).

22 See Metro. Atlanta Rapid Transit Auth. v. Fife, 220 Ga. App. 298, 299, 300 (1) (469 SE2d 420) (1996) (noting that photographic evidence showed that allegedly dangerous condition of drainage culvert was “plainly visible to anyone standing at the curb,” and holding that condition was open and obvious); Warren, 183 Ga. App. at 868 (1) (“Photographs of the stream illustrate that even a first time visitor to the stream would perceive that the stream’s bed was or at least was likely to be rocky. … The rocky condition of the terrain in and about the stream was open and obvious.”); see also Engleson v. Little Falls Area Chamber of Commerce, No. Civ. 101-102, 2002 U.S. Dist. LEXIS 23093, 2002 WL 31689432, at *3 (3) (D. Minn. 2002) (noting, in case involving a plaintiff who tripped over an orange traffic cone, that “[t]he test for obviousness is an [***16] objective test that examines whether the danger was in fact visible, rather than whether the injured party actually saw the danger,” and concluding that not only were traffic cones obvious but that defendants “could not have anticipated harm from the cones because traffic cones are, themselves, warning markers”).

23 See Ray, 296 Ga. App. at 702 (1) (“The … third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

24 (Emphasis supplied.)

Furthermore, even if we were to assume that Martin Amestoy could not see the barricades from his position and speed on his bicycle or due to the sun’s location at the exact moment of his accident on the morning in question, [HN10] whether a dangerous condition is open and obvious depends on the objective knowledge of a reasonable person, not on the plaintiff’s subjective knowledge.25

25 See Morris v. Clark Equip. Co., 904 FSupp. 1379, 1383 (II) (B) (M.D. Ga. 1995) (“In determining whether a danger was open and obvious to the injured party, the court should [***17] use an objective point of view, as opposed to subjective, since the user’s perceptions are irrelevant.”); see also Weatherby v. Honda Motor Co., 195 Ga. App. 169, 171 (393 SE2d 64) (1990) (“In determining, under the ‘open and obvious rule,’ whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view … , and the subjective perceptions of the user or injured party are irrelevant.”), overruled on other grounds by Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 443-44 (500 SE2d 570) (1998) (holding that “open and obvious danger” rule is not applicable in cases of alleged design defect). See generally 62A Am. Jur. 2d Premises Liability § 713 (2016) [HN11] (“Whether a condition is open and obvious, for premises liability purposes, depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective knowledge. The test for what constitutes an ‘obvious’ danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible.” (footnotes omitted)).

[*474] [**116] In light of the foregoing, we must reverse the trial court’s denial of SMMA’s motion for summary judgment.26

26 See Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no [***18] evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”).

Judgment reversed. Phipps, P. J., and Peterson, J., concur.


Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.

However, the courts in this case seemed to want the plaintiff’s to win no matter what.

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

State: New Jersey, Superior Court of New Jersey, Appellate Division

Plaintiff: Patrick Brett and Elisa Ramundo

Defendant: Great American Recreation, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute.

Holding: For the plaintiff’s

Year: 1995

This is an old decision; however, it explains how a statute created to and passed to protect an activity, can be used to hold the operators of the activity liable.

There are numerous claims, cross claims, third party claims and claimants. Several parties were dismissed prior to trial. Basically, everyone who was brought into the lawsuit also made claims against the people bringing them in and anyone else that could have any liability.

Thirteen college friends intended to spend the weekend in a condo owned by the uncle of one of the thirteen. The condo was sitting next to the Great Gorge North ski area. Between the ski area and the condos was a vacant strip of land. The land is owned by two condo associations, including one of the plaintiffs were staying in.

During the day, the vacant strip of land is used by the ski area as a bunny hill. When the ski hill is closed the lights are turned off.  However, the lights are turned back on later in the night for the groomers to operate.

One of the party of 13 found in the condo a toboggan. After the lights were turned back on, several of the thirteen went tobogganing on the bunny hill. They were not alone tobogganing; other people were tobogganing, sledding and using the hill after it had closed but with the lights on.

Different people in the group used the toboggan at different times; taking turns because the toboggan could only hold six at a time. On the third run, the toboggan was launched higher up the hill.

The toboggan went down the bunny hill across a fifty to sixty foot flat section of land, over a flattened snow fence then over the edge of a 20’ embankment landing in the parking lot below. One of the six was able to fall off the toboggan before it went over the embankment. The five remaining riders were seriously injured landing in the parking lot and hitting a light pole.

Security guards were employed by the defendant condo association. Part of their duties included keeping people off the bunny hill. However, this night the security guards were shorthanded, and hill was not checked. The plaintiff’s even argued that the defendants were negligent because they failed to eject people on the bunny hill.

Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers.

The case proceeded to trial, and the plaintiffs were awarded $2,475,000 among the five of them. The damages were apportioned under comparative negligence as: plaintiffs 22%, defendant 54% and Stonehill 24% (one of the condo associations).

The defendants appealed.

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

The court first pointed out that even if the plaintiffs were found to be trespassers that did not mean, under New Jersey law that no duty was owed to the trespassers. If the land contained a dangerous instrumentality, then a duty is owed to a trespasser to warn them of the danger.

Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous.

In this case, the court concluded that next to a bunny hill, an embankment is a dangerous instrumentality. The court’s opinion of the situation is pretty clear in the next discussion when the embankment is called a fatal trap.

Here, on one side of that relationship are young people attracted to a condominium because of its proximity to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, was a near-fatal trap to those using the trail to toboggan.

New Jersey has a Skier Safety Act. The court found that the New Jersey Skier Safety Act applied to this case.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies.

Once it is determined the act applies, the court, or jury, determines if the injuries of the plaintiff were caused by the ski operators violation of the act. If so the plaintiff recovers.

If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence.

The court also found the plaintiff’s violated one statute of the New Jersey Skier Safety Act. The plaintiff’s failed to maintain control of their toboggan and did not know their abilities.

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies.  [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.

The court also found the plaintiff’s assumed the risk because they still went down the slope. However, this assumption of the risk, the court found was not a complete bar, but only proved the plaintiffs contributed to their injuries. Which is contrary to how the assumption of risk provision reads and is somewhat contrary to earlier statements in the case?

It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

This interpretation of the statute effectively render’s the inherent risk section of the statute void. An inherent risk is a risk that is part of the activity. In inherent risk is something that cannot be removed from the activity without rendering the activity moot. You cannot sue for an injury you receive from an inherent risk of the activity, allegedly. Skier Safety Acts are written to broaden the risks that are inherent and to make them, if assumed an absolute bar to a claim, in most states.

However, in New Jersey, this is not the case.

It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

The case took a somewhat amusing turn. The court reviewed the plaintiff’s claim that a stronger fence should have been built and that the defendants were liable because they had not built a fence strong enough to keep the plaintiff’s from going over the embankment. Aren’t the injuries going to be different when a toboggan going fast enough to over an embankment hits a fence, but still severe?

The argument then went back to the New Jersey Skier Safety Act. The act differentiates between manmade hazards and natural ones. The statute defines a ski area as real property “…”utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.”

However, the court simply stated, “Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.”

Then the court looked at the hazard and determined the act required removal of a hazard. If the hazard could not be removed, then the plaintiff’s had to be warned of the hazard.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed all posted warnings.”

The decision then went back to the duty owed to trespassers. The defendants argued the New Jersey Skier Safety Act does not apply to trespassers. However, the court stated that even if the plaintiffs were trespassers a high duty was owed with or without the New Jersey Skier Safety Act.

We already suggested that even at common law, defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable.

The court then summed out the analysis it was making to allow a recovery by the plaintiffs.

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

The statutory responsibility was the failure to remove the embankment or post a warning about it.

A major issue at trial was whether defendant violated any of its statutory responsibilities. The focus was on the meaning of  [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

The appellate court upheld the jury’s decision and award at trial.

So Now What?

In New Jersey, you must make your property safe for all users of the property, even if they are doing so without our permission. If you cannot remove the hazard, you must post a warning of the hazard, if the hazard is considered ultra-hazardous.

Simply put, risk management is not controlling what people are expected to do at your program or business. Risk Management is looking at all aspects of the operation and finding ways that people can be hurt doing things other than what they came for.

The Zip Line may be perfect but is someone can mistake an anchor for a zip line you will be sued. See Federal court voids release in Vermont based on Vermont’s unique view of release law. Someone uses the equipment incorrectly, and the court is going to hold you to the fire. See Sometimes you get screwed; here Petzl was shafted by the court.

However, a person can use a piece of equipment, try a ride, climb up or down; they will do it wrong, be hurt and sue.

Risk Management is looking at things from every point of view, for every age group, for every activity, if you don’t think those people, those age groups or that activity can be done.

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Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Patrick Brett and Elisa Ramundo, Plaintiffs-Respondents, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association, Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Defendant/Third-Party-Plaintiff/Respondent, v. Denise Mcdade, Nancy Morgan, Third-Party-Defendants. Karen Furman, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, v. Rudolph Maurizzi, Third-Party-Defendant/Respondent. Donald Pisarcik, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants, and Rudolph Maurizzi, Defendant-Respondent. Megan Russell, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Lisa Carmelitano, Third-Party-Defendants/Respondents, and Karen Furman, Third-Party-Defendant.

A-4010-92T3

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

November 29, 1994, Argued

February 8, 1995, Decided

SUBSEQUENT HISTORY: [***1] Approved for Publication February 8, 1995. As Amended.

Certification granted Brett v. Great Am. Recreation, 141 N.J. 97, 660 A.2d 1196, 1995 N.J. LEXIS 379 (1995)

Affirmed by Brett v. Great Am. Rec., 144 N.J. 479, 677 A.2d 705, 1996 N.J. LEXIS 787 (1996)

PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Union County.

COUNSEL: Samuel A. DeGonge argued the cause for appellant Great American Recreation, Inc. (Samuel J. McNulty, on the brief).

Philip G. Auerbach argued the cause for respondents Patrick Brett, Elisa Ramundo, Karen Furman and Donald Pisarcik (Auerbach & Cox, attorneys; Mr. Auerbach, on the brief).

John P. Doran argued the cause for respondent Megan Russell.

Anthony P. Pasquarelli argued the cause for respondent Rudolph Maurizzi (Methfessel & Werbel, attorneys; Jared E. Stolz, of counsel and on the brief).

Kevin J. Decoursey argued the cause for respondent Lisa Carmelitano (O’Toole & Couch, attorneys; Michael Della Rovere, on the brief).

JUDGES: Before Judges BRODY, LONG and ARNOLD M. STEIN. The opinion of the Court was delivered by BRODY, P.J.A.D.

OPINION BY: Warren Brody

OPINION

[*310] [**776] The opinion of the Court was delivered by

BRODY, P.J.A.D.

Plaintiffs in this consolidated personal injury action are five of thirteen college friends, then twenty and twenty-one years old, who had planned to be together for a winter weekend at a condominium in Vernon Township. The owner of the condominium, third-party defendant Rudolph Maurizzi, is the uncle of third-party defendant [***2] Lisa Carmelitano, one of the group. He allowed the group to use his condominium, which is one of many such buildings built along the slope of Great Gorge North on either side of a vacant strip of land. During the winter, the vacant strip, which is about a thousand feet long, is the Bunny Buster ski trail. Defendants Stonehill Property Owners Association, Inc. and Hotel [*311] Section Condominium Council, Inc. (Stonehill) own the land that contains the condominiums and the Bunny Buster trail. Defendant Great American Recreation, Inc. (defendant) operates the trail as a business under the terms of an easement from Stonehill.

Members of the group arrived on Friday at different times. Early arrivals spent part of the day skiing along various trails in the area. When they finished skiing, some of those returning to the condominium used or crossed the Bunny Buster trail even though defendant had turned off the lights on the trail because by then it had closed for the day. Between ten and eleven o’clock that night, after everyone in the group had arrived at the condominium, defendant turned on the Bunny Buster trail lights to enable its employees to groom the trail for the next day. Grooming [***3] is accomplished by using motor vehicles to pull heavy rollers over the trail to tamp down the snow.

Earlier that day, one member of the group discovered a toboggan that Maurizzi had stored in his condominium with other snow equipment. After the lights were turned on, the group decided to slide down part of the trail on the toboggan. There was evidence that other people at the time were using the trail for sledding and tobogganing. The toboggan could hold no more than six people so members of the group took turns riding it. The first two runs were uneventful.

[**777] The third run, with six on board, was a disaster. Starting from a point a bit higher than where the first two runs had begun, the toboggan slid down the trail, across a fifty- to sixty-foot flat expanse of snow at the base of the trail, over a flattened snow fence, and then over the edge of a twenty-foot dirt embankment to a parking lot below. One of the six fell off the toboggan before it dropped over the edge, thereby escaping injury. The other five, the plaintiffs, were seriously injured as their bodies hit the embankment, the parking lot and a parking-lot light pole. There was evidence that, at the time of the rescue operation, [***4] other people, not associated with plaintiffs’ group, who were tobogganing [*312] escaped injury by tumbling off their toboggan just before it dropped over the edge.

Claims against all third-party defendants were dismissed on their motions for partial summary judgment. Plaintiffs settled with Stonehill before trial. The jury found that under the New Jersey Ski Statute (Statute), N.J.S.A. 5:13-1 et seq., plaintiffs as a group, defendant and Stonehill were all negligent. The jury apportioned the negligence as follows: plaintiffs 22%, defendant 54% and Stonehill 24%. The jury found that fair and adequate total compensation to all plaintiffs would be $ 2,475,000.

Defendant’s main arguments are: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute. Defendant raised these issues when it moved, unsuccessfully, for involuntary dismissal upon the conclusion of plaintiffs’ presentation of evidence, R. 4:37-2(b), and for judgment at the close [***5] of all evidence, R. 4:40-1. For reasons that follow, we conclude that defendant is liable under the Statute and that the Statute does not bar the claims of trespassers.

Before discussing those issues, we note that, contrary to defendant’s contention, although plaintiffs were trespassers at the time of the accident their claims would not necessarily be barred at common law. ” [HN1] Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” Renz v. Penn Cent. Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981). The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Id. at 462, 435 A.2d 540. Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous. As this accident demonstrated, tobogganers who reached the bottom of the trail would be carried by momentum over the edge of a twenty-foot embankment resulting in serious injury.

[*313] The Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), [***6] signaled its movement away from the rigid common-law distinctions among the standards of care due trespassers, licensees and invitees. There the Court held that a real estate broker owed a duty of reasonable care to a prospective home buyer who was injured when she failed to notice a step and fell while viewing the premises. She was there to attend an “open house” conducted by the broker. In imposing a duty of care on the broker, thereby departing from the common-law requirement that only the property owner had such a duty, the Court said:

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law.

[Id. at 438, 625 A.2d 1110]

Here, on one side of that relationship are young people attracted to a condominium because of its proximity [***7] to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, [**778] was a near-fatal trap to those using the trail to toboggan. Without having to decide the question, we suggest that even if the Ski Statute did not apply, the operator would have a common-law duty to take reasonable measures to warn such trespassers of that latent danger.

Indeed, such an obligation was recognized by defendant in its cross-claim against Stonehill. Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers. We add that [HN2] the duty of an owner or occupier of land to warn of such a serious [*314] danger may not be delegable. Hopkins, supra, at 441, 625 A.2d 1110 (citing Sanna v. National Sponge Co., 209 N.J.Super. 60, 506 A.2d 1258 (App.Div.1986)). [***8]

The Legislature enacted the Ski Statute in 1979 in response to a decision by the Vermont Supreme Court that deprived operators of ski areas of the absolute defense of assumption of risk. Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978), held that in adopting comparative negligence by statute the legislature of that state intended to replace the absolute defense of assumption of risk with the defense of plaintiff’s comparative negligence. Our Legislature was thus moved to consider whether its adoption of the doctrine of comparative negligence in 1973 left ski area operators unfairly vulnerable to personal injury actions caused by accidents that are an inherent risk of skiing and related sports such as toboganning. See generally Reisman v. Great Am. Recreation, 266 N.J.Super. 87, 92-95, 628 A.2d 801 (App.Div.), certif. denied, 134 N.J. 560, 636 A.2d 519 (1993).

[HN3] Actions against a ski operator for personal injuries sustained by a skier on its ski slope are governed by common-law negligence principles unless the Ski Statute applies. Reisman, supra,266 N.J. Super. at 97, 628 A.2d 801. [***9] The Statute, however, has wide application.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies. The common law, and not the Statute, was applied in Reisman because there the skier’s injury [*315] was the result of neither the violation of a statutory duty nor the assumption of a statutory risk. He was injured while properly proceeding slowly down a beginner’s slope when a drunken skier knocked him to the ground.

1 [HN4] N.J.S.A. 5:13-2c defines “skier” to include “a person utilizing the ski area for recreational purposes such as . . . operating toboggans.”

[HN5] Once it is determined that the [***10] Statute applies, one must look at N.J.S.A. 5:13-3, which lists the responsibilities of the ski operator. 2 If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence. N.J.S.A. 5:13-6.

2 [HN6] N.J.S.A. 5:13-2a defines “operator” to include “a person . . . who . . . manages . . . the operation of an area where individuals come to . . . operate . . . toboggans.”

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise [***11] traverse any trail, slope or other [**779] area which is beyond the skier’s ability to negotiate.

Plaintiffs were not able to negotiate the Bunny Buster trail. It is also obvious that plaintiffs are deemed to have assumed at least one statutory risk. [HN8] N.J.S.A. 5:13-5 provides in part:

Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.

Given that assumption, plaintiffs acted in a manner that contributed to their own injury.

It is important to note that these [HN9] statutory violations and risk assumptions do not affect the percentage of a skier’s comparative [*316] negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

A major issue at trial was whether [***12] defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

Much of the confusion in arguing the liability issue at trial was caused by the next subsection of the Statute, which expressly excuses an operator from certain specific responsibilities to skiers. In that regard, [HN11] N.J.S.A. 5:13-3 provides in relevant part:

b. No operator shall be responsible to any skier or other person because of its failure to comply with any provisions of subsection 3.a. if such failure was caused by:

* * * *

(3) Subject to the provisions of subsection 3.a.(3), the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type. . . .

Plaintiffs argued that the man-made hazard for which defendant was responsible was fencing. At first they seemed to suggest that the snow fence was a direct cause of the accident because it constituted a ramp that “launched” the toboggan down the embankment. Defendant [***13] responded by claiming the benefit of subsection -3b(3), which relieved it of any responsibility for the “location” of “fencing” “necessary for the ordinary operation of the ski area.”

As plaintiffs developed their case with expert testimony, however, it became apparent that they were not claiming that the flimsy snow fence was a cause of the accident, but rather that a cause of the accident was defendant’s failure to erect a more resistant fence that would restrain a toboggan and its passengers from [*317] going over the edge of the embankment. Aside from whether such a fence would effectively reduce injury or be “practicable” (a requirement of section -3a), defendant argued that the absence of a stronger fence was still related to the location of fencing and therefore not actionable because of subsection -3b(3).

The trial judge rejected defendant’s argument when he denied its motions. He interpreted “man-made hazards” comprehensively to include the design of the trail, which directed toboggans, known to be difficult if not impossible to control, over the edge of the twenty-foot embankment and down to the parking lot and light pole. As he understood the Legislature’s intent, the requirement [***14] that operators “remove . . . man-made hazards” was broad enough to include warning people not to use the trail for tobogganing. The judge instructed the jury that “remove” not only means “to . . . uproot” but also means “to eliminate or reduce or obviate.” This left the jury free to decide whether the hazard of falling over the edge of the embankment could be removed by warnings. We agree with the trial judge.

[**780] [HN12] An obvious man-made hazard, as contemplated in N.J.S.A. 5:13-3a(3), is a man-made danger, obvious to an operator, that is not an inherent risk of using a “ski area.” A ski area is defined in part by N.J.S.A. 5:13-2b as real property “utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.” Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed [***15] all posted warnings.”

Defendant argues alternatively that even if plaintiffs may recover under the Ski Statute, the Statute does not apply to trespassers. We already suggested that even at common law, [*318] defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable. We find nothing in the statute that suggests that the Legislature meant to supplant the common law in that respect. The Statute does not exempt trespassers from the definition of skiers to whom operators have a limited responsibility. We quote the [HN13] N.J.S.A. 5:13-2c definition in full:

“Skier” means a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds or similar vehicles, and including anyone accompanying the person. Skier also includes any person in such ski area who is an invitee, whether or not said person pays consideration.

[Emphasis added.]

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover [***16] under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

Our understanding of the Legislature’s intent is fortified by a change in the Assembly bill before it became the Statute. The bill originally contained a section that read:

No operator shall be liable to any person who is a trespasser, which shall include, but not be limited to, persons using the facilities who fail, when required to do so, to pay lift fees or other fees required in connection with the use of these facilities. The operator shall be liable to skiers and others only as specified in this section.

[A. 1650, 198th Leg., 1st Sess. § 3(c) (1978).]

That provision was deleted before the Statute was adopted. The Statement accompanying the final version of the bill stated in part, “The complete removal of liability on the part of a ski area operator to trespassers would be eliminated.” Assembly Judiciary, Law, Public Safety and Defense Committee Statement to Assembly No. 1650 (November 20, 1978).

The two remaining arguments that we will briefly address are that the motion judge erroneously granted partial summary judgments to Maurizzi and to Carmelitano. [***17] The motions were properly granted.

[*319] There was no evidence presented in opposition to Maurizzi’s motion that he authorized plaintiffs to use his toboggan, which he had stored in his home. There was no evidence that a toboggan is so inherently dangerous that Maurizzi should have secured it from use by adults. There was no evidence that Maurizzi knew that using the toboggan on the Bunny Buster trail would be especially dangerous.

As to Carmelitano, although there was evidence, presented in opposition to her motion, that some members of the group drank beer at the condominium before the accident, there was no evidence that Carmelitano served the beer, much less that she served it to anyone who was visibly intoxicated. Indeed, there was no evidence that beer-drinking was a cause of the accident. See Gustavson v. Gaynor, 206 N.J.Super. 540, 503 A.2d 340 (App.Div.1985), certif. denied, 103 N.J. 476, 511 A.2d 655 (1986).

[**781] We are satisfied from a careful reading of this record that the remaining issues that defendant has raised in its brief are clearly without merit and therefore require no discussion. R. 2:11-3(e)(1)(E).

[***18] Affirmed.