Brough v. Hidden Valley, Inc.

• Decision Date: 05 June 1998
• Citation: 711 A.2d 382,312 N.J.Super. 139
• Parties: Kathleen BROUGH and David Isralowitz, Plaintiffs-Appellants, v. HIDDEN VALLEY, INC., Hidden Valley Ski and Tennis Club, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 139

312 N.J.Super. 139

711 A.2d 382

Kathleen BROUGH and David Isralowitz, Plaintiffs-Appellants, v. HIDDEN VALLEY, INC., Hidden Valley Ski and Tennis Club,

Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued May 19, 1998.

Decided June 5, 1998.

Terry Paul Bottinelli, Hackensack, for plaintiffs-appellants (Herten, Burstein, Sheridan, Cevasco, Bottinelli & Litt, attorneys; Mr. Bottinelli, of counsel; Mr. Bottinelli and Thomas S. McGuire, on the brief).

Bradley M. Wilson, West Orange, for defendants-respondents (Sachs, Maitlin, Fleming, Greene & Wilson, attorneys; Mr. Wilson, on the brief).

Before Judges PRESSLER, CONLEY and CARCHMAN.

The opinion of the court was delivered by

CONLEY, J.A.D.

Plaintiff sustained serious injuries while skiing with her daughter on one of defendants' ski slopes when she fell into an uncovered concrete box a short distance off the trail. Plaintiff and her husband sued defendants alleging various theories of negligence. Following two unsuccessful motions for summary judgment brought by defendants based upon a release signed by plaintiffs, the matter was tried before a jury over seven days. The jury no caused on the issue of negligence. On appeal plaintiffs contend:

POINT I. THE TRIAL COURT ERRED IN ALLOWING DEFENSE COUNSEL TO QUESTION PLAINTIFF CONCERNING AN ALLEGED EXCULPATORY CLAUSE.

POINT II. THE TRIAL COURT ERRONEOUSLY PRECLUDED PLAINTIFF FROM QUESTIONING DEFENSE WITNESSES FOR PURPOSES OF IMPEACHMENT RESPECTING SUBSEQUENT CHANGES TO THE ACCIDENT SCENE.

POINT III. A NEW JURY PANEL SHOULD HAVE BEEN SUMMONED AFTER ONE PROSPECTIVE JUROR EXPRESSED BIAS IN OPEN COURT.

POINT IV. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO FEASIBLE ALTERNATIVES TO THE DESIGN, LOCATION AND/OR LACK OF SAFETY FEATURES OF THE BOX WHICH PLAINTIFF FELL INTO.

POINT V. THE JURY VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

We have carefully considered these contentions. We conclude that error in the judge's jury charge on the New Jersey Ski Statute (Ski Statute), N.J.S.A. 5:13-1 to -11 (point IV), and error in defense counsel's use of the release provisions (point I) require a new trial. Although we need not address the remaining points, we comment as to point II that plaintiffs should have been permitted to use photographs showing warning poles by the concrete box, taken eleven days after the accident, to cross-examine defendants' witness who had asserted that no warnings were ever posted. Snyder v. American Assoc. of Blood Banks, 282 N.J.Super. 23, 46, 659 A.2d 482 (App.Div.1995), aff'd, 144 N.J. 269, 676 A.2d 1036 (1996). If on retrial the plaintiff uses the photos for such impeachment purposes, a limiting instruction should be given. E.g., Lavin v. Fauci, 170 N.J.Super. 403, 408, 406 A.2d 978 (App.Div.1979).

I.

In 1990 plaintiffs, Kathleen Brough and her husband David Isralowitz, purchased a condominium in Hidden Valley and joined the Hidden Valley Ski Club. On February 17, 1992, Kathleen and her daughter Beth were skiing the "Browse Along Trail" owned and operated by defendants. The trail starts with a beginner section, turns into an intermediate section for approximately fifty feet and then ends as a beginner section. Kathleen had previously skied that trail approximately two hundred times. On that particular day, she was skiing ahead of Beth in the last section of the trail when she "hockey stopped" ¹ on the right hand side of the trail and turned toward the hill to watch her daughter. Suddenly she fell backwards. She did not know what caused her to fall. She fell downward and ended up in a concrete box, also referred to as a catch basin or junction box.

Beth testified at trial that she saw her mother hockey stop approximately twenty feet in front of her, wave and then start to lose her balance and slip backwards. Although Beth did not actually see her mother's backward descent, she did see her "disappear."

The concrete box, apparently used to connect two drainage culverts, measured four feet nine inches by four feet. It was estimated as sixteen to twenty-four inches deep. Although the box was obviously designed with a cover, it was uncovered at the time of the accident. An hour after the accident, the cover was put back on. The area where plaintiff fell contained no warnings of a dangerous drop or as to the location of the concrete box.

Plaintiff did not remember seeing the box on her prior trips down the trail and testified that the box was adjacent, i.e., "touching" the trail. Irv Kinney, a Ski Patroller at Hidden Valley and the first to respond to the scene, estimated that the distance from the top of the concrete box's wall to the trail was approximately eight feet. He testified that the concrete box was "at the edge of the treeline" approximately eleven feet removed from the snow.

Plaintiffs' expert and accident reconstructionist, Dick Penniman, inspected the site of the accident on August 25, 1992. It was his opinion that the location of the concrete box was not necessary and that concrete and steel were inappropriate construction materials for a structure in the proximity of a ski trail. In his view, the box could have been located either further up or down the hill to reduce potential contact with skiers. In this respect, he testified:

I've never seen anything like it before and I wouldn't expect a skier--first of all, to have been exposed to something like this on a regular basis before and secondly, because of the configuration of the trail they won't see it as they're skiing down, if they're skiing in the middle of the trail or even close to the edge they can't see over that breakover. They're not even going to be aware it's there, all they're going to know there are some trees and stuff on the sides of the trails, they're not going to be aware of anything like this.

Although he conceded that he was not aware of any written codes or standards that require the box to be buried, he also said that "there is a custom and practice that would say that any obstacle of this kind on or near a trail should be padded, fenced or otherwise eliminated." Warnings as well would have reduced the risk of harm. A cover on the box, at the least, he thought would have avoided the injury. It was, finally, his opinion that the dangerous condition created by the box was not an inherent risk in recreational skiing.

Defendants took the position that the location of the box was not a hazard, was necessary and was off the ski trail. In this respect, Robert Benyon, Director of Operations for Hidden Valley, explained that it was not marked as a hazard "[b]ecause it's not ... anywhere near the skiing surface and we would not consider it a hazard." He felt that the location of the box was necessary. Similarly, Hidden Valley's Ski Patrol Director, Michael Hahn, had never considered the box a hazard because "[i]t's too far into the woods ... it's ... right by the tree line and the trail's nowhere near it." The same view was expressed by Gary Brooks, a Ski Patroller at Hidden Valley. However, he concluded on cross-examination that since Hidden Valley made artificial snow, the location of the trail could be changed depending on how the snow was placed. Defendants' witnesses, moreover, disagreed that a cover on the box would have prevented the injuries. Indeed, Benyon testified that had the box been covered at the time plaintiff fell into it, she would have sustained more serious injuries "because the terrain on the other side of the box is much rougher than in the box itself."

Finally, defendants' expert, John Perryman, secretary of the American Society for Testing and Materials (A.S.T.M.) Committee on skiing safety, testified that there were no written or adopted standards for the use of protective devices in ski areas. He opined that there was no need for warnings, padding or protective fencing in this instance as the concrete box was "off the trail" and "not a hazard." Moreover, he too believed that padding, a covering or warnings would not have prevented plaintiff's injuries.

II.

The claim of negligence on the part of defendants, of course, must be considered within the context of the Ski Statute and the charge to the jury must be consistent therewith. The trial judge must relate the law to the facts of the case and " 'a charge which misleads a jury will require a reversal and a new trial.' " Myrlak v. Port Auth. of N.Y. and N.J., 302 N.J.Super. 1, 19, 694 A.2d 575 (App.Div.), certif. granted, 152 N.J. 10, 702 A.2d 349 (1997) (quoting Vallejo by Morales v. Rahway Police Dep't, 292 N.J.Super. 333, 342, 678 A.2d 1135 (App.Div.), certif. denied, 147 N.J. 262, 686 A.2d 763 (1996)). "A proper jury charge should 'outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them....' " Facendo v. S.M.S. Concast, Inc., 286 N.J.Super. 575, 588, 670 A.2d 44 (App.Div.1996) (quoting Navarro v. George Koch & Sons, Inc., 211 N.J.Super. 558, 570, 512 A.2d 507 (App.Div.), certif. denied, 107 N.J. 48, 526 A.2d 138 (1986)).

The defendants' theory on the issue of negligence, both through its witnesses and as argued in summations was that the plaintiff assumed the risk of injury in skiing and that because the man-made concrete box was located off the trail, defendants owed no duty to eliminate or lessen the dangers posed by it. Plaintiff's expert in contrast, asserted that the concrete box posed a danger caused by its proximity to the trail and that defendants had a duty to remove or reduce that danger. In other words, the concrete box was not an inherent risk of the sport that a skier must assume but rather was a hazard that defendants had a duty to remove or reduce.

In this respect, the Ski Statute requires ski resort operators to post signs or distribute information on the difficulty and condition of ski...