Sunday v. Stratton Corp.

• Citation: 390 A.2d 398,136 Vt. 293
• Decision Date: 06 June 1978
• Docket Number: No. 241-77,241-77
• Parties: James C. SUNDAY v. STRATTON CORPORATION.
• Court: United States State Supreme Court of Vermont

Page 398

390 A.2d 398

136 Vt. 293

James C. SUNDAY v. STRATTON CORPORATION.

No. 241-77.

Supreme Court of Vermont.

June 6, 1978.

Sylvester & Maley and J. William O'Brien, Burlington, for plaintiff.

Paul D. Sheehey, Burlington, and David L. Cleary, of Richard E. Davis, Associates, Inc., Barre, for amicus curiae Vermont Ski Areas Ass'n, Inc.

Dick, Hackel & Hull, Rutland, and Paul, Frank & Collins, Inc., Burlington, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

LARROW, Justice.

On February 10, 1974, plaintiff, then just under 21, was injured while skiing as a paying patron on the premises of the defendant's ski resort in Stratton, Vermont. His injuries resulted in permanent quadriplegia. In the instant suit, he alleges in substance that defendant negligently maintained its ski trails and failed to give notice of hidden dangers. Trial by jury, demanded by both parties, resulted in a plaintiff's verdict for $1,500,000 and judgment for that amount plus costs. The verdict was based upon a finding that defendant's negligence was 100% The cause of plaintiff's injuries. Defendant, by its appeal, seeks in the alternative: (I) reversal of the trial court's adverse ruling on its motion for directed verdict based upon assumption of risk, and entry of judgment in its favor here, (II) reversal and remand because of claimed trial errors, including denial of a motion for mistrial and errors in the court's charge, (III) setting aside the verdict as against the weight of the evidence, and (IV) remand for new trial because of error in denying its motion to set aside the verdict as excessive. Some of its claims overlap each other, while others involve more than one asserted error. We will address the several points in the order outlined.

(I) Motion for Directed Verdict

Defendant moved for directed verdict at the end of plaintiff's case and renewed the motion at the close of all the evidence. In substance, the motion was based upon its claim that recovery was precluded by the doctrine of assumption of risk, asserted to have survived adoption of the comparative negligence statute (12 V.S.A. § 1036) and to operate as an absolute bar in the instant case.

Important to any consideration of this claim is the provision of V.R.C.P. 8(c), embodying the substance of what was formerly 12 V.S.A. § 1024. Under that provision, assumption of risk is an affirmative defense, which the asserting party has the burden to "affirmatively set forth and establish." We note this burden because, in our view, the evidence adduced by the parties does not support application of the doctrine as a bar to recovery in the present case.

Viewing the evidence in the light most favorable to plaintiff, he was a novice skier, skiing on a novice trail owned and maintained by the defendant. While traversing the trail at a speed equal to a fast walk, his ski became entangled in a small bush, or clump of brush, about 8 by 20 , some 3-4 feet in from the side limits of the travelled portion of the trail. The brush was concealed by loose snow. Unseen by him before the accident, it was seen shortly after by himself and his skiing companion.

A novice is a beginner, the lowest classification of skier, and novice trails are designed to be easy and are more carefully maintained to compensate for the lesser skills of the users. At Stratton the trail here in question (the Interstate) is the best maintained of the many trails on the mountain. Defendant uses highly sophisticated equipment and machines for this purpose. Witness after witness, employed by and testifying for the defendant, described the procedures employed, all aimed at establishing, not that the clump of brush was an inherent danger of the sport as defendant now asserts, but that it simply was not there, as the plaintiff testified. Each witness testified that no such growth had ever been observed on the Interstate.

In laying out the trail, every effort was made to achieve a "perfect surface for skiing." After cutting of trees, elaborate machines moved everything, stumps and brush included, from the trail to achieve a "complete new surface," like a "fairway, absolutely flat." The surface was then raked and fertilizer, and all stones over 3 were removed by hand labor. Seeding was then done with a "carpetlike" grass cover to kill other growth. Any other growth was cut by hand or mower, even tall grass, because such growth is considered a danger to the novice skier. As a last step the slope was scaled "as smooth as it can be." Single shoots, as they may occur, were regularly checked and cut, and regular rolling was carried out. The Interstate, in particular, was maintained with the best base of all trails, because it was regularly used as a road by all the company equipment, which is radio controlled. Trail cutting went to within one foot of the tree line, and the packed area was about 16' wide where the plaintiff was injured. One expert witness called by the defendant testified that any brush or shrub in the skiable portion of the Interstate should have been eliminated.

At the time of the accident some 52 ski patrolmen were on duty, plus a trail crew charged with checking for hazards. At least 17 pieces of heavy equipment were available for use, plus other transportation. Prior to 1974, Stratton had widely advertised its world-wide reputation for trail maintenance, "meticulous grooming" and "top quality cover."

The foregoing facts are emphasized because defendant argues that, in some manner, this case is controlled by Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786 (D.Vt.1951). In that case the Federal District Court, construing Vermont law under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), but relying almost entirely on cases from other jurisdictions, held that a tree stump, from cutting, covered by snow on an intermediate trail, was a part of the inherent risk of the sport of skiing, assumed by the injured plaintiff and therefore barring her recovery. The accident in Wright occurred in 1949.

Of course, Wright is not a binding decision on this Court. Nor do we regard it as completely significant that since its rendition it has been cited in our decisions only twice, neither time with anything like general adoption. Stearns v. Sugarbush Valley Corp., 130 Vt. 472, 474, 296 A.2d 220, 222 (1972); Marshall v. Town of Brattleboro, 121 Vt. 417, 420, 160 A.2d 762, 765 (1960). The simple fact of the matter is that the general rule which it lays down has wide acceptance, even by the plaintiff here. But its application to particular facts is not as simple. The general principle of Wright is that a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary. We are not called upon here to pass upon what dangers are inherent in an intermediate trail, as in Wright, but we could not subscribe to the theory that a stump created by the defendant in a novice trail would be such a danger. We cannot agree that such a stump would be, in the language of Wright, a "mutation of nature." Nor do we subscribe to the theory that the brush here in question is such an inherent danger, given defendant's unchallenged testimony, the basis for its whole defense, that its modern methods of care have made such a growth, within the travelled trail, impossible. Arguing to the jury its excellent grooming practices, so perfected as to render plaintiff's claim of brush in the trail impossible, may indeed present an issue as to its alleged negligence, but it does not sustain the burden of proving an assumption of risk by the plaintiff. It is clear from the evidence that the passage of time has greatly changed the nature of the ski industry. Unlike those participants eloquently described by Chief Judge Cardozo in Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929), heavily relied upon in Wright, the timorous no longer need stay at home. There is concerted effort to attract their patronage and to provide novice trails suitable for their use. This is the state of the evidence in the case tried below; none of it was calculated to show the brush to be a danger inherent in the use of a novice slope as laid out and maintained by the defendant. Like many other fields, the "art" has changed vastly. Defendant admits as much by conceding in its brief that "the stump that injured the plaintiff in Wright may well be the basis for negligence today in view of improved grooming techniques." And, unlike 1949, the maintenance here is performed by the defendant itself, rather than by the communal efforts of individuals, corporations, innkeepers and the like.

Many of our cases contain language that is difficult to reconcile, in discussing the fine distinctions between assumption of risk and contributory negligence. Early cases, of course, deal with the master-servant relationship, in which field development was curtailed by the adoption of laws relating to workmen's compensation and abolishing the defense. And fine distinction between assumption of risk and contributory negligence was not important when either was an absolute bar to recovery. We will not attempt an analysis of all cases on this point, because it would serve, we feel, no useful purpose. We have stated the rule applicable to business visitors on premises, which plaintiff here admittedly was, in Garafano v. Neshobe Beach Club, Inc., 126 Vt. 566, 572, 238 A.2d 70, 75 (1967):

In the discharge of its duty, (defendant) was bound to use reasonable care to keep its premises in a safe and suitable condition so that plaintiff would not be unnecessarily or unreasonably exposed to danger. If a hidden danger existed, known to the defendant, but unknown and not reasonably apparent to the plaintiff, it was (defendant's) duty to give warning of it to the latter. In those circumstances he had a right to assume that the premises,...