Brett v. Great American Recreation, Inc.

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtSTEIN
Citation677 A.2d 705,144 N.J. 479
Decision Date13 June 1996
PartiesPatrick BRETT and Elisa Ramundo, Plaintiffs-Respondents, v. GREAT AMERICAN RECREATION, INC., Defendant-Appellant, and Stonehill Property Owners Association, Inc., and Hotel Section Condominium Council, Inc., Defendants and Third-Party Plaintiffs, and Rudolph Maurizzi, Defendant and Third-Party Plaintiff-Respondent, v. Denise McDADE and Nancy Morgan, Third-Party Defendants. Karen FURMAN, Plaintiff-Respondent, v. GREAT AMERICAN RECREATION, INC., Defendant-Appellant, and Stonehill Property Owners Association, Inc., and Hotel Section Condominium Council, Inc., Defendants and Third-Party Plaintiffs, v. Rudolph MAURIZZI, Third-Party Defendant-Respondent. Donald PISARCIK, Plaintiff-Respondent, v. GREAT AMERICAN RECREATION, INC., Defendant-Appellant, and Stonehill Property Owners Association, Inc., and 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., and Hotel Section Condominium Council, Inc., Defendants and Third-Party Plaintiffs, and Rudolph Maurizzi, Third-Party Defendant-Respondent, and Lisa Carmelitano and Karen Furman, Third-Party Defendants.

Page 479

144 N.J. 479
677 A.2d 705
Patrick BRETT and Elisa Ramundo, Plaintiffs-Respondents,
v.
GREAT AMERICAN RECREATION, INC., Defendant-Appellant,
and
Stonehill Property Owners Association, Inc., and Hotel
Section Condominium Council, Inc., Defendants and
Third-Party Plaintiffs,
and
Rudolph Maurizzi, Defendant and Third-Party Plaintiff-Respondent,
v.
Denise McDADE and Nancy Morgan, Third-Party Defendants.
Karen FURMAN, Plaintiff-Respondent,
v.
GREAT AMERICAN RECREATION, INC., Defendant-Appellant,
and
Stonehill Property Owners Association, Inc., and Hotel
Section Condominium Council, Inc., Defendants and
Third-Party Plaintiffs,
v.
Rudolph MAURIZZI, Third-Party Defendant-Respondent.
Donald PISARCIK, Plaintiff-Respondent,
v.
GREAT AMERICAN RECREATION, INC., Defendant-Appellant,
and
Stonehill Property Owners Association, Inc., and 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., and Hotel
Section Condominium Council, Inc., Defendants and
Third-Party Plaintiffs,
and
Rudolph Maurizzi, Third-Party Defendant-Respondent,
and
Lisa Carmelitano and Karen Furman, Third-Party Defendants.
Supreme Court of New Jersey.
Argued Nov. 28, 1995.
Decided June 13, 1996.

George C. Jones, Morristown, for appellant (Ribis, Graham & Curtin and Samuel A. DeGonge, attorneys, Belleville; Mr. DeGonge and Jerome J. Graham, Jr., Morristown, of counsel).

Philip G. Auerbach, Red Bank, for respondents Patrick Brett, Elisa Ramundo, Karen Furman and Donald Pisarcik.

Page 488

John P. Doran, Jersey City, for respondent Megan Russell.

Jared E. Stolz, Rahway, for respondent Rudolph S. Maurizzi (Methfessel & Werbel, attorneys).

The opinion of the Court was delivered by

STEIN, J.

This appeal requires us to consider the scope and proper application of the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -11 (Ski Statute). Plaintiffs sued for compensation for injuries they sustained in an accident while tobogganing on a snow-covered hill that was part of a ski resort operated by defendant. The trial court instructed the jury to apply the Ski Statute, and the jury returned a verdict for plaintiffs. The Appellate Division affirmed, 279 N.J.Super. 306, 652 A.2d 774 (1995), concluding that the Ski Statute governed and that it was correctly interpreted by the trial court. We granted certification. 141 N.J. 97, 660 A.2d 1196 (1995).

I

Plaintiffs, Patrick Brett, Karen Furman, Donald Pisarcik, Megan Russell, and Elisa Ramundo, were five of a larger group of college friends, then twenty and twenty-one years old, who had travelled to Vernon Township to spend a winter weekend at a condominium there. The condominium belonged to defendant Rudolph Maurizzi, an uncle of one of the group. It is one of a number of condominiums built along the slope of Great Gorge North on either side of a vacant strip of hillside about a thousand feet long. During the winter, the vacant strip is a ski trail known as the Bunny Buster. The trail is part of the ski resort operated by defendant Great American Recreation, Inc. (Great American). Great American operates the trail pursuant to an easement from defendants Stonehill Property Owners Association, Inc. and Hotel Section Condominium Council, Inc. (Stonehill), who own the land.

Page 489

Members of the group arrived on Friday at different times. Furman, and third-party defendants Denise McDade and Lisa Carmelitano (Maurizzi's niece) arrived early, and spent part of the day skiing at the [677 A.2d 710] resort. As the afternoon advanced, the trails were illuminated by artificial lights. When the resort closed for the night, those lights were turned off. The skiers returned to the condominium over the ski trails, crossing the Bunny Buster trail in the dark.

Earlier that day, another member of the group had discovered a plastic toboggan that Maurizzi stored in his condominium with other snow equipment. By evening, all the members of the party had arrived. Between ten and eleven o'clock that night, someone noticed that the lights on the Bunny Buster trail had been turned back on. Great American had illuminated the trail to enable its employees to groom it for the next day's skiers. Observing the lighted slope, the group decided to use Maurizzi's toboggan on the trail. There was testimony at trial that other people were also present and using the trail for sledding or tobogganing. Maurizzi's toboggan could hold no more than six people, so members of the group took turns riding it. The first two runs were uneventful.

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, plaintiffs, were propelled off the embankment, into the parking lot, and into a utility pole located there.

All were evacuated by ambulance to a hospital with grave injuries. According to plaintiffs' testimony, Furman suffered a head injury that required brain surgery, and led to partial paralysis, cognitive disabilities, and impaired speech. She also broke her leg and eight ribs, and one of her lungs was punctured. Russell

Page 490

required extensive, reconstructive facial surgery; she also suffered back injuries, and has lost the use of her right eye. Ramundo's back was broken and she was in a body cast for six months. Pisarcik sustained fractures of the skull, facial bones, and clavicle, and both lungs were collapsed. Brett's jaw was broken and he required back surgery. The record indicates that Russell and Furman bear some facial disfigurement. None of the plaintiffs have been able fully to return to the physical activities they enjoyed before the accident.

There was evidence that, at the time of plaintiffs' rescue by emergency medical personnel, other tobogganers not associated with plaintiffs' group escaped injury by tumbling off their toboggan just before it dropped over the edge of the embankment. A security guard employed by Stonehill testified that in the past he had seen children sleighriding on the hill. In addition, he had ordered sleighriders off the Bunny Buster hill on three or four occasions when the ski area was closed. Removing sleighriders or tobogganers from the hill was not, however, a high priority for the Stonehill security team. The security guard testified that he had other duties on the night of the accident.

Plaintiffs filed suit against Great American and Stonehill. Maurizzi and Carmelitano were named as third-party defendants and then joined as defendants by plaintiffs. McDade and another member of the party, Nancy Morgan, were also named as third-party defendants. Stonehill settled with plaintiffs before trial. The individual defendants and third-party defendants, including Maurizzi, were dismissed from the case on their motions for summary judgment. Those dismissals were affirmed by the Appellate Division and are not challenged before us.

The proper interpretation of the Ski Statute is critical to our disposition of this appeal. In general, the Ski Statute sets forth certain duties for ski-resort "operators" and for "skiers" as those terms are defined in the statute. Operators must post signs or otherwise distribute information on the difficulty and condition of the ski trails and "[r]emove as soon as practicable obvious, man-

Page 491

hazards." N.J.S.A. 5:13-3(a)(1) to -3(a)(3). Skiers, defined in some circumstances to include tobogganers, must know the limits of their abilities, ski under control, and ski only on designated trails. N.J.S.A. 5:13-4(c) to -4(g). The statute also provides that skiers assume risks inherent in their sport. N.J.S.A. 5:13-5.

[677 A.2d 711] Great American moved for involuntary dismissal at the close of plaintiffs' case, see R. 4:37-2, and for judgment at the close of all the evidence. See R. 4:40-1. In support of its motion for dismissal, Great American argued that the Ski Statute applied to plaintiffs' claims. Defendant maintained that plaintiffs were skiers as defined by the statute and, accordingly, had an obligation to know the limits of their abilities and to maintain control of their course and speed, and that they assumed the risk of the hazard they encountered. In addition to being skiers, defendant contended that plaintiffs were also trespassers and that its common-law duty to plaintiffs was merely to refrain from willfully injurious acts. As a result, Great American argued, it owed plaintiffs none of the statutory duties of operators, and plaintiffs were "totally barred" from bringing suit. In effect, Great American's position called for an integration of the common law of premises liability with the duties codified by the Ski Statute, with the result that plaintiffs bore all of the statutory obligations of skiers, but could not benefit from any of the statutory obligations of operators because of their status as trespassers.

Plaintiffs did not contest that the statute applied, and the trial court held that it governed the case. However, the court did not accept defendant's argument that the operator owed plaintiffs none of the statutory duties, finding that if the Legislature had intended to exclude trespassers from the reach of the Ski Statute it would have done so expressly. The court held further that the record was sufficient to create a jury question whether plaintiffs were invitees, given the lighting on the slope and the possibility that defendant might be charged with knowledge that people would use the slope to toboggan. Even if plaintiffs were not invitees, however, the court held that...

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56 practice notes
  • Vega by Muniz v. Piedilato
    • United States
    • United States State Supreme Court (New Jersey)
    • June 23, 1998
    ...We granted certification, 149 N.J. 139, 693 A.2d 109 (1997), to consider whether our decision in Brett v. Great American Recreation, Inc., 144 N.J. 479, 677 A.2d 705 (1996), modified the infant-trespasser rule as formulated in section 339 of the Restatement (Second) of Torts (1965) (Restate......
  • Maran v. Victoria's Secret Stores, LLC, Civ. No. 17-308 (KM) (MAH)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 22, 2019
    ...care commensurate with the risk of harm." Sussman , 373 N.J. Super at 505, 862 A.2d 572 (citing Brett v. Great Am. Recreation, Inc. , 144 N.J. 479, 509, 677 A.2d 705 (1996) ). "In assessing whether imposition of such a duty would be fair and just, courts weigh and balance the following four......
  • Kuzmicz v. Ivy Hill Park Apartments, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • February 20, 1997
    ...all of the surrounding circumstances,' the imposition of a duty on the landowner is 'fair and just.' " Brett v. Great Am. Recreation, 144 N.J. 479, 509, 677 A.2d 705 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438, 625 A.2d 1110 (1993)). For off-premises liability, the iss......
  • Clohesy v. Food Circus Supermarkets, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • June 26, 1997
    ...based exclusively on the status of the injured party. Kuzmicz, supra, 147 N.J. at 515, 688 A.2d 1018; Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509, 677 A.2d 705 (1996). However, in a case such as the present one in which the legal relationship is clearly defined, the common law cl......
  • Request a trial to view additional results
56 cases
  • Vega by Muniz v. Piedilato
    • United States
    • United States State Supreme Court (New Jersey)
    • June 23, 1998
    ...We granted certification, 149 N.J. 139, 693 A.2d 109 (1997), to consider whether our decision in Brett v. Great American Recreation, Inc., 144 N.J. 479, 677 A.2d 705 (1996), modified the infant-trespasser rule as formulated in section 339 of the Restatement (Second) of Torts (1965) (Restate......
  • Maran v. Victoria's Secret Stores, LLC, Civ. No. 17-308 (KM) (MAH)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 22, 2019
    ...care commensurate with the risk of harm." Sussman , 373 N.J. Super at 505, 862 A.2d 572 (citing Brett v. Great Am. Recreation, Inc. , 144 N.J. 479, 509, 677 A.2d 705 (1996) ). "In assessing whether imposition of such a duty would be fair and just, courts weigh and balance the following four......
  • Kuzmicz v. Ivy Hill Park Apartments, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • February 20, 1997
    ...all of the surrounding circumstances,' the imposition of a duty on the landowner is 'fair and just.' " Brett v. Great Am. Recreation, 144 N.J. 479, 509, 677 A.2d 705 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438, 625 A.2d 1110 (1993)). For off-premises liability, the iss......
  • Clohesy v. Food Circus Supermarkets, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • June 26, 1997
    ...based exclusively on the status of the injured party. Kuzmicz, supra, 147 N.J. at 515, 688 A.2d 1018; Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509, 677 A.2d 705 (1996). However, in a case such as the present one in which the legal relationship is clearly defined, the common law cl......
  • Request a trial to view additional results

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