Codd v. Stevens Pass, Inc.

• Decision Date: 22 September 1986
• Docket Number: No. 14581-9-I,14581-9-I
• Citation: 45 Wn.App. 393,725 P.2d 1008
• Parties: Rosalie CODD, Personal Representative of the Estate of Bryan Shawn Codd, Deceased, Appellant, v. STEVENS PASS, INC., Respondent.
• Court: Washington Court of Appeals

Page 393

45 Wn.App. 393

725 P.2d 1008

Rosalie CODD, Personal Representative of the Estate of Bryan Shawn Codd, Deceased, Appellant, v. STEVENS PASS, INC., Respondent.

No. 14581-9-I.

Court of Appeals of Washington Division 1.

Sept. 22, 1986.

Thomas D. Kelley, Charles F. Peery, Preston, Thorgrimson, Ellis & Holman, Seattle, for respondent.

Lawrence Lonfelder, Nicholas Wagner, Kerry D. Kidman, Morrow, Longfelder, Tinker & Kidman, Inc., P.S., Seattle, for appellant.

REVELLE, Judge, Pro Tem. ^*

Plaintiff Rosalie Codd (Codd) appeals a jury verdict in favor of defendant Stevens Pass, Inc., finding no negligence in this wrongful death action arising from the skiing death of Bryan Codd at the Stevens Pass ski area. Codd maintains that the court erred in giving certain instructions and in refusing to give others, in excluding a statement from evidence and in excluding evidence of a warning sign which was subsequently placed after the accident above the accident site by Stevens Pass. Codd appealed directly to the Supreme Court pursuant to RAP 4.2. The Supreme Court transferred it here. We reverse and remand for a new trial.

Bryan and Rosalie Codd, with their two teenage children, came to Seattle on December 23, 1979 to spend Christmas with friends. On December 27, 1979, they visited friends who lived near Stevens Pass and went skiing at the ski area. Bryan was an advanced intermediate skier and had been skiing for 11 years. However, neither Bryan nor son Jeff had skied at Stevens Pass before.

For most of the afternoon, Bryan and Jeff skied together on the higher, more difficult slopes. Toward the end of the afternoon, Bryan and Jeff headed down toward the base of the ski area. They had nearly reached the base, when they came to the slope serviced by the Daisy chairlift. The Daisy run was the "bunny hill" of Stevens Pass. It was one of the gentlest and easiest runs on the mountain, and it was used primarily by beginners.

Part way down the Daisy run, it splits into two branches. After beginning their descent down one of the two branches, Bryan and Jeff agreed to ski the ungroomed area between the two branches which had many moguls because the two groomed trails looked too easy. It was undisputed that this ungroomed area was well used by both intermediate and beginner skiers seeking to improve their skiing skills.

Bryan started down this middle area first and soon disappeared around a knoll. Jeff did not, therefore, see his father's fall. Several witnesses, however, did see fragmented parts of the accident from the chairlift above. Apparently, Bryan was skiing conservatively at a moderate speed and in control when he caught the edge of his ski and flew into the air. He then caught his ski tips on a mogul, then plummeted head first into a mogul. When Jeff arrived he found Bryan unconscious. Jeff then skied downhill to summon help. Bryan died later at the first-aid station.

A mogul is a mound of snow formed by many different things such as a rock or a place where many skiers have turned around at a particular spot and carved out a place in the snow. The accident area had many moguls. Under the accident area was a rock field estimated to be about 50 by 250 feet. It included boulders up to 4 and 5 feet in diameter. Stevens Pass acknowledges that when the snow cover was low, the accident area was hazardous because of the boulders, but maintains it was safe on the day of the accident. One of the doctors testified that the most probable cause of Bryan's death was that his head hit a snow covered rock where he fell. The jury returned a verdict in favor of Stevens Pass. Codd appeals.

Jury Instructions

Codd maintains that court erred in giving the following instructions: Instruction 13 on assumption of risk, Instruction 14 on duty of recreational skier, Instruction 16 on negligence per se and Instruction 18 on contributory negligence.

She also maintains the court erred in failing to give plaintiff's proposed Instruction 17.1 on reasonable care in giving warnings. For instructions to be sufficient, they must correctly state the law, not be misleading and permit each party to argue his theory of the case. Rottinghaus v. Howell, 35 Wash.App. 99, 108, 666 P.2d 899 (1983).

Under the common law, a skier is a business invitee of the ski area operator. The operator owes an affirmative duty to the skier, as the invitee, to discover dangerous conditions through reasonable inspection, then repair that condition or warn the invitees of the hazard, unless it is known or obvious. Egede-Nissen v. Crystal Mt., Inc., 93 Wash.2d 127, 132, 606 P.2d 1214 (1980); Restatement (Second) of Torts § 343 (1965)). This duty extends only to the "area of invitation," e.g., that area where an invitee is reasonably led to believe is open to him. Egede-Nissen, at 132, 606 P.2d 1214; Mesa v. Spokane World Exposition, 18 Wash.App. 609, 613, 570 P.2d 157 (1977); Restatement (Second) of Torts § 332 comment 1 (1965). If limitation to a general invitation is sought, the inviter must make the limitation apparent to the invitee either expressly or by obstructing or otherwise segregating the limited portion. Mesa, at 613, 570 P.2d 157. The status of a public invitee is retained as long as the invitee remains within the area of invitation. Thus, under the common law, Stevens Pass would have a duty to warn, not only where latent dangerous conditions existed, but also where the boundaries of the business invitation were, unless obvious.

Washington statutory law modifies, but is generally consistent with, the common law. RCW 70.117.010 (1-9) requires the ski operator to maintain a sign system, i.e., give notice to the skier regarding ski level ability needed on different slopes and indicate which trails and slopes have been closed. ¹

However, RCW 70.117.020(7) arguably may be inconsistent with the common law where it states that "any person skiing on other than improved trails or slopes within the area shall be responsible for any injuries or losses resulting from his or her action." This provision bars a skier's recovery for injuries incurred in other than the delineated areas. Interpretation of a statute is a question of law to be determined by the court. Condit v. Lewis Refrigeration Co., 101 Wash.2d 106, 676 P.2d 466 (1984). The problem becomes determining what are "improved trails or slopes within the ski area" where the ski area operator continues to have a duty to the skier. The first question is whether "other than improved" modifies only "trail" or both "trail" and "slope". The next question is whether "slope within the area" includes the portion between the two Daisy runs.

The ski operator has a common law and statutory duty to a skier when he is on the "slope within the area". Stevens Pass basically urges us to limit its duty by defining "slope" as synonymous with "run" as opposed to the whole general area serviced by a chair and held out to the public as a skiing area. Under this "spot" theory, not only would Codd's accident site fail to be on a "slope" and thusly be out of the ski operator's scope of liability, but also under this theory, skiers would unknowingly ski in and out of different duties of care. Since this "spot" interpretation conflicts with the common law "area of invitation" doctrine, we decline to adopt it and hold that "slope" includes the whole area served by the Daisy chair, including the area between the runs where the accident occurred.

Stevens Pass contends that even if the accident site were on a "slope," Codd cannot recover because the slope was not "improved." First, we hold that the statutory term "improved" modifies only "trail." Thus, Stevens Pass's scope of liability extends to the accident site. However, even if "improved" also modified "slope," Stevens Pass's duty would still extend to the area since we concur with the trial court that the "slope" where the accident occurred was "improved" within the meaning of the statute.

The term "improved" is not defined in the statute. Evidence indicated that neither "improved" or "unimproved" were a term of art known or used in the ski industry. Where a term is undefined by statute, it should be given its ordinary meaning. Pacific First Fed. Sav. & Loan Ass'n v. State, 92 Wash.2d 402, 409, 598 P.2d 387 (1979). In ascertaining the ordinary meaning of statutory terms, courts frequently resort to dictionaries. State ex rel. Graham v. Northshore School District 417, 99 Wash.2d 232, 244, 662 P.2d 38 (1983). Webster's New World Dictionary, College Edition, 732 (1968) defines "improve" as "1. to use profitably or to good advantage ... 2. to raise to a better quality or condition; make better. 3. to make (land more valuable by cultivation, etc."). Under all definitions, Stevens Pass had "improved" the accident site. The operator was using the area profitably. It also had changed the physical landscape when they changed from rope tows to chair lifts in order to make the area more valuable. Even if improved applied to snow conditions, Stevens Pass admitted that Sno Cats occasionally went through the accident site to pack down the snow.

Thus, Stevens Pass had a duty to warn Codd if the accident area was latently hazardous, both under the common law and under an interpretation of the statute. Thus, RCW 70.117.020(7) does not bar Codd's recovery as a matter of law for any and all injuries that occurred to him while skiing.

Instruction 14 and 18

Stevens Pass contend that Instructions 14 and 18 properly define the ski operator's duty to Codd and Codd's duty to himself. The skier's duties to himself are different from those of the ski operator's and ski patroller's to Codd, as the skier. RCW 70.117.020(6) requires that skiers exercise reasonable care for their own safety. This is consistent with Washington's comparative fault law. RCW 4.22.005, 4.22.015. RCW 70.117.020(3), (6) states that a skier must keep control of his speed and course and that the "primary duty shall be on the...