Mortiboys v. St. Michael's College, 627

• Decision Date: 11 May 1973
• Docket Number: No. 627,Docket 72-2341.,627
• Citation: 478 F.2d 196
• Parties: Brian J. MORTIBOYS, Plaintiff-Appellee. v. ST. MICHAEL'S COLLEGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

478 F.2d 196 (1973)

Brian J. MORTIBOYS, Plaintiff-Appellee. v. ST. MICHAEL'S COLLEGE, Defendant-Appellant.

No. 627, Docket 72-2341.

United States Court of Appeals, Second Circuit.

Argued March 27, 1973.

Decided May 11, 1973.

Frederick W. Allen, Burlington, Vt. (Karen McAndrew and Wick, Dinse & Allen, Burlington, Vt., on the brief), for defendant-appellant.

Philip H. Hoff, Burlington, Vt. (James L. Morse, Burlington, Vt., on the brief), for plaintiff-appellee.

Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN,^* District Judge.

THOMSEN, District Judge.

Defendant college appeals from a judgment for plaintiff in an action for damages based on injuries he received in a skating accident in February 1968. St. Michael's College was then a small liberal arts college for men, in Colchester, Vermont. Plaintiff was there on a full athletic scholarship for the purpose of playing basketball.

The college had no organized hockey program, but provided two outdoor ice rinks on which students could skate at their pleasure. The one in question was in the form of a hockey rink, but smaller; it had sturdy side boards and nets, and was used by students for skating, pushing a puck around and "pickup" games.

The undisputed evidence shows that college employees scraped and flooded the rink whenever the weather would permit, usually a couple of times a week, when the temperature would drop to near zero ; they removed snow when necessary and checked the rink daily or every other day.

On Friday, February 24, about 1 :30 or 2:00 p. m., plaintiff and a friend walked over to the rink with their skates and hockey sticks, in the hope of picking up a game. They found six or seven others there, and skated around for about an hour and a half, passing the puck to each other. The temperature had risen to about 35°, but as the sun went down it became colder. The ice was rather rough, but skatable; it was "snowflakey" and cut up from having been skated on. As plaintiff was going after the puck, skating rapidly but not full speed toward the boards, intending to pass the puck to his friend, he noticed a small lump or ball of ice, between 1/2 inch and 1 inch in height; he raised his foot to pass over it, but when he put his foot down, his skate hit the lump, causing him to fall and injure himself severely.

Plaintiff had not previously seen the lump, and there is no evidence that anyone else saw it before or after the accident. Outdoor ice is exposed to the vicissitudes of the weather and the accumulations caused by skaters using the surface. It necessarily becomes somewhat rough during such use. It is a matter of speculation what caused the lump to be formed and whether it had been there for any substantial length of time.

Plaintiff's evidence shows that the maintenance of an indoor rink in suitable condition for intercollegiate hockey requires a staff, expensive equipment¹ and repeated smoothing of the ice during games, as well as before games and practice sessions. Such maintenance cannot reasonably be required of a college providing an outdoor rink for the kind of use contemplated and to which this rink was actually being put at the time of the accident. The duty on the college was reasonable care under all the circumstances.

"In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or have existed for such a time that it was his duty to know it." Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796, 799 (1970), quoting from two earlier cases, Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375, 377, and Wakefield v. Levin, 118...