Braasch v. Vail Associates, Inc.

Citation370 F. Supp. 809
Decision Date27 December 1973
Docket NumberNo. 73 C 1852.,73 C 1852.
PartiesKathryn BRAASCH, Plaintiff, v. VAIL ASSOCIATES INC., d/b/a Vail Ski School, and Zenith Ski Company, Defendants.
CourtU.S. District Court — Northern District of Illinois

F. James Foley, Chicago, Ill., for plaintiff.

John F. O'Meara, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

BAUER, District Judge.

This cause comes on the defendants' motions to dismiss and quash service of process.

This is an action seeking to redress the alleged tortious conduct of the defendants. Jurisdiction is allegedly based on diversity of citizenship pursuant to 28 U.S.C. § 1332. The damages are alleged to exceed $10,000 exclusive of interest and costs.

The plaintiff, Kathryn Braasch, is a citizen of the State of Illinois. The defendant Vail Associates, Inc., d/b/a Vail Ski School ("Vail"), is a corporation incorporated under the laws of the State of Colorado and has its principal place of business in Colorado. The defendant Zenith Ski Company ("Zenith") is a corporation incorporated under the laws of the State of New York and has its principal place of business in that state.

The plaintiff, in her amended complaint, alleges, inter alia, the following facts:

1. On March 11, 1972 the defendant Vail was engaged in the skiing recreation and instruction business in Vail, Colorado. On and before March 11, 1972 the defendant Vail by and through its agents, servants and employees solicited and conducted business within the City of Chicago, Illinois and more particularly invited Kathryn Braasch and contracted with her to ski at Vail, Colorado. The defendant Vail held itself out as being able to teach people who did not ski how to ski safely through the use of its agents or servants who were held out to be expert instructors in skiing.
2. On March 11, 1972, at the invitation of the defendant Vail, Kathryn Braasch, paid a fee to be taught how to ski safely. At all times and places the plaintiff Kathryn Braasch was not guilty of any contributory negligence.
In the presence of the defendant Vail's instructor, Kathryn Braasch put on the skis and after preliminary instructions was taken by her instructor to a ski slope owned and operated by defendant Vail. After seeing the height and angle of the slope Kathryn Braasch asked the expert instructor if she was experienced or knowledgeable enough to safely ski down that slope. The instructor assured her that she was experienced and knowledgeable enough to safely ski down the slope.
3. Each ski which Kathryn Braasch wore was equipped with a device called a binding, manufactured, designed and marketed by the defendant Zenith. The purpose of the binding was to attach the boot worn by the plaintiff to the ski and in the event of a fall the bindings were designed to release the boot from the ski so that the skier's leg is not put under undue pressure so as to cause injury. The bindings must be properly adjusted to the boot to operate as they are designed. Kathryn Braasch had attached the boots she was wearing to the bindings and skis in the presence of the expert instructor.
4. After the expert instructor assured Kathryn Braasch that she was experienced and knowledgeable enough to proceed down the slope to which he had brought her, Kathryn Braasch began to descend the slope. The instructor allowed Kathryn Braasch to travel away from him. Kathryn Braasch lost control of her descent and fell. The bindings failed to release her boot from the ski. The defendant Vail by and through its agents or servants was negligent in one or more of the following ways:
a. negligently and carelessly failing to adjust the bindings attached to Kathryn Braasch's boots;
b. negligently and carelessly allowing Kathryn Braasch to put on her own bindings when the instructor knew or should have known that Kathryn Braasch did not know how to properly adjust the bindings;
c. negligently and carelessly failing to check said bindings to be certain that they were adjusted in a manner so that they would operate as designed;
d. negligently and carelessly taking Kathryn Braasch to a ski slope which Kathryn Braasch was not experienced or knowledgeable enough to ski down safely;
e. negligently and carelessly allowing Kathryn Braasch to ski down a slope which the instructor knew, or should have known, was too great a slope for Kathryn Braasch to ski down safely;
f. negligently and carelessly telling Kathryn Braasch that she was experienced and knowledgeable enough to ski safely down a slope when the instructor knew, or should have known, that Kathryn Braasch could not ski down the slope safely; and
g. negligently and carelessly allowing Kathryn Braasch to get too far away from the instructor so that the instructor was unable to aid Kathryn Braasch when she lost control of her descent, when the instructor knew, or should have known, that Kathryn Braasch might lose control of her descent and would need his aid.
5. As a proximate result of the foregoing negligence, Kathryn Braasch fractured her leg and was caused and will be caused in the future, great pain and suffering; was rendered unable to walk and had to rely on crutches, and as of the filing of this complaint is still unable to walk without limping; was forced to expend great sums of monies for doctors, pharmaceutical and hospital care, and will be forced to do so in the future; was forced to lose monies from gainful employment and will lose such in the future.
6. When Kathryn Braasch attempted to ski down the slope and fell, the bindings failed to release her boot from the ski. On March 11, 1972 this binding was not reasonably safe in that its system designed to release Kathryn Braasch's boot from the ski upon her falling was defective. The defective condition or alternatively the condition which caused the defective condition existed at the time the binding left the control of the defendant Zenith Ski Company up to and including March 11, 1972. As a proximate result of the unsafe condition of the binding Kathryn Braasch fractured her leg, was caused and will be caused in the future, the above mentioned pain and suffering, expenses and loss of income.
7. Plaintiff seeks damages against the defendants jointly and severally in the amount of $500,000.00.

The defendant Vail in support of its motion to dismiss the amended complaint and quash service of process contends that:

1. The instant action is for personal injuries which occurred and were sustained in Colorado, and the plaintiff fails to allege any actions of the defendant occurring within the State of Illinois.
2. This defendant does not maintain an office in Illinois, does not employ anyone in Illinois, and does no business in Illinois.
3. The service of summons was made upon this defendant in Colorado where the defendant Vail is incorporated and maintains its principal office.
4. This federal court in the instant action lacks in personam jurisdiction over a non-resident corporation performing no acts in the forum state.

The defendant Vail supports the above allegation with the affidavit of Robert Parker, the Vice-President of Marketing of Vail Associates, Inc., which states that Vail maintains no office in Illinois, employs no one in Illinois and does no business in Illinois.

The plaintiff, in opposition to the defendant Vail's motion, contends that Vail had sufficient contact with Illinois to subject it personally to the jurisdiction of this Court. In support of this contention the plaintiff has submitted numerous exhibits which allegedly demonstrate that Vail maintained a booth at the Ski Show at Arlington Park in October, 1972, that Vail mailed promotional literature into the State of Illinois, that Vail either caused or allowed its facilities to be advertised in various Chicago newspapers and that local travel agencies and air lines are obviously provided with Vail's literature.

The defendant Zenith, in support of its motion to dismiss the amended complaint and to quash service contends that this Court does not have any basis for maintaining personal jurisdiction over the Zenith Ski Company.

The defendant Zenith supports the above contentions with the affidavit of Joseph Khazzam, Vice-president of Zenith Ski Company, which...

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