O'Connell v. Killington, Ltd., No. 93-394

Docket NºNo. 93-394
Citation164 Vt. 73, 665 A.2d 39
Case DateAugust 04, 1995
CourtUnited States State Supreme Court of Vermont

Page 39

665 A.2d 39
164 Vt. 73
Mary Ryan O'CONNELL
v.
KILLINGTON, LTD.
No. 93-394.
Supreme Court of Vermont.
Aug. 4, 1995.

Page 40

[164 Vt. 74] Thomas M. French, Brattleboro, for plaintiff-appellee.

Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

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DOOLEY, Justice.

Defendant ski area, Killington, Ltd., appeals from a negligence judgment against it based on defendant's failure to identify an unknown skier with whom plaintiff, Mary Ryan O'Connell, collided while skiing. On appeal, defendant claims that it owed no duty to plaintiff to identify the other skier, that plaintiff's claim is barred because the jury found that the accident resulted from an inherent risk of skiing, and that the court made errors in its charge to the jury. We reverse.

[164 Vt. 75] On January 12, 1990, plaintiff was skiing one of defendant's most difficult trails. She stopped to rest at the edge of the trail and was struck by another skier who lost control on the ice at the center of the trail. One of defendant's ski patrollers, along with plaintiff's sister, arrived at the scene shortly after the collision. Plaintiff requested that they obtain the name of the other skier. While the ski patroller was occupied with evaluating and stabilizing plaintiff's injury, plaintiff's sister spoke to the other skier, and requested that he follow plaintiff to the patrol station and identify himself. The skier failed to arrive at the patrol station as requested, and has never been identified. Plaintiff's injuries proved serious, and she and her husband filed suit against defendant in Rutland Superior Court, complaining that defendant negligently (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition, and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff's injuries were the consequence of her assumption of the inherent risks of skiing.

The trial court denied defendant's motion for directed verdict, both at the close of plaintiff's case and at the close of the evidence. The court submitted the failure-to-warn and the failure-to-identify counts to the jury. In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant's employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant's negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.

Based on the instructions, the jury found for defendant on the failure-to-warn count and on the failure to close the trail because it found that the accident resulted from an inherent risk of the sport of skiing. It further found that defendant had negligently failed to obtain the identity of the other skier and that its negligence was the proximate cause of the loss of plaintiff's "right to compensation" from that skier for her injuries. The jury awarded plaintiff $71,108.69 in damages, and the trial court denied defendant's motions for judgment notwithstanding the verdict and for a new trial.

Defendant raises three issues on appeal: (1) whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided [164 Vt. 76] with her; (2) whether plaintiff's failure-to-identify claim is precluded by the jury's finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and (3) whether certain instructions to the jury were proper. We agree with defendant's position on the first issue and, therefore, reverse. Because the case must be dismissed, we do not reach the second and third issues.

Defendant first claims that it owed plaintiff no duty to obtain the identity of the other skier, and that, accordingly, the trial court erred by instructing the jury that could find that defendant's employee manual created such a duty. We agree.

In deciding this question, we first note that although the Vermont Legislature has passed a statute governing liability vis-a-vis the obtaining of names of skiers involved in a collision, see 12 V.S.A. § 1038(b)(2), this accident preceded the effective date of the statute so that it does not apply to this case. In any event, we conclude that the result in this case

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is the same under either the common law or the statute. 1

Common-law negligence requires that there be a legal duty owed by defendant to plaintiff, breach of that duty, that such breach be the proximate cause of plaintiff's harm, and that plaintiff have suffered actual loss or damage. See Langle v. Kurkul, 146 Vt. 513, 517, 510 A.2d 1301, 1304 (1986). Clearly, the first of these elements, duty, is central to a negligence claim, and its existence is primarily a question of law. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). The imposition of a duty is " 'an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.' " Id. (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)).

Plaintiff's theory is that defendant had a duty to obtain the name of the skier who collided with her so plaintiff could sue that skier for her damages caused by the collision. Under plaintiff's theory, this duty arises, first and foremost, because plaintiff's injury...

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47 practice notes
  • Giles v. General Motors Acceptance Corp., No. 05-15189.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 2007
    ...that the doctrine bars recovery of economic loss in actions for negligence in performance of contract); O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39, 42-43 (1995) (barring recovery of economic loss in negligence in ski accident case because "[n]egligence law does not generally rec......
  • Sullivan v. Saint-Gobain Performance Plastics Corp., Case No. 5:16-cv-125
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • December 27, 2019
    ...most circumstances, parties to a contract have no tort duty to protect one another from economic loss. See O'Connell v. Killington, Ltd. , 164 Vt. 73, 665 A.2d 39 (1995) (ski area has no duty to protect the litigation interest of a skier injured in a collision on the slopes). In this settin......
  • Moffitt v. Icynene, Inc., No. 1:04-CV-115.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • December 27, 2005
    ...economic loss." Gus' Catering, Inc. v. Menusoft Systems, 171 Vt. 556, 558, 762 A.2d 804 (2000) (quoting O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39 (1995)); City of Burlington v. Zurn Industries, Inc., 135 F.Supp.2d 454, 461 (D.Vt. 2001); Wentworth v. Crawford and Page 601 174 Vt......
  • In re Montagne, Bankruptcy No. 08-10916.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court —District of Vermont
    • December 18, 2009
    ...symptoms; and (5) even if the economic loss rule applies, her claims fit the exception articulated in O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39 (1995) (doc. # 292, pp. 2. Negligent Provision of Pecuniary Information Paragraph 75 of the Counterclaim sets forth the basis for the ......
  • Request a trial to view additional results
47 cases
  • Giles v. General Motors Acceptance Corp., No. 05-15189.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 10, 2007
    ...that the doctrine bars recovery of economic loss in actions for negligence in performance of contract); O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39, 42-43 (1995) (barring recovery of economic loss in negligence in ski accident case because "[n]egligence law does not generally rec......
  • Sullivan v. Saint-Gobain Performance Plastics Corp., Case No. 5:16-cv-125
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • December 27, 2019
    ...most circumstances, parties to a contract have no tort duty to protect one another from economic loss. See O'Connell v. Killington, Ltd. , 164 Vt. 73, 665 A.2d 39 (1995) (ski area has no duty to protect the litigation interest of a skier injured in a collision on the slopes). In this settin......
  • Moffitt v. Icynene, Inc., No. 1:04-CV-115.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • December 27, 2005
    ...economic loss." Gus' Catering, Inc. v. Menusoft Systems, 171 Vt. 556, 558, 762 A.2d 804 (2000) (quoting O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39 (1995)); City of Burlington v. Zurn Industries, Inc., 135 F.Supp.2d 454, 461 (D.Vt. 2001); Wentworth v. Crawford and Page 601 174 Vt......
  • In re Montagne, Bankruptcy No. 08-10916.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court —District of Vermont
    • December 18, 2009
    ...symptoms; and (5) even if the economic loss rule applies, her claims fit the exception articulated in O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39 (1995) (doc. # 292, pp. 2. Negligent Provision of Pecuniary Information Paragraph 75 of the Counterclaim sets forth the basis for the ......
  • Request a trial to view additional results

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