Estate of Frant v. Haystack Group, Inc.

• Decision Date: 28 February 1994
• Docket Number: No. 92-584,92-584
• Citation: 641 A.2d 765,162 Vt. 11
• Parties: ESTATE OF Martin A. FRANT, Roger Frant, Administrator v. HAYSTACK GROUP, INC., et al.
• Court: Vermont Supreme Court

Page 765

641 A.2d 765

162 Vt. 11

ESTATE OF Martin A. FRANT, Roger Frant, Administrator v. HAYSTACK GROUP, INC., et al.

No. 92-584.

Supreme Court of Vermont.

Feb. 28, 1994.

Motion for Reargument Denied May 3, 1994.

J. Eric Anderson of Cantini, Anderson & Oakman, Manchester Center, Richard M. Howland, Amherst, MA, and Jean M. Fielding, Greenfield, MA, for plaintiffs-appellants.

David L. Cleary and Thomas P. Aicher of David L. Cleary Associates, Rutland, for defendants-appellees.

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

MORSE, Justice.

Martin Frant sued for injuries received when he skied into a wooden lift-corral post at defendant Haystack's ski area. ^* Haystack won summary judgment under Vermont's sports injury statute, which states that "a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary." 12 V.S.A. § 1037 (acceptance of inherent risks). We hold the trial court misconstrued § 1037 by concluding that, regardless of whether the ski area's use of the wooden posts was negligent, the statute prevented recovery as a matter of law because Frant accepted the "obvious and necessary" risk posed by the corral post. Instead, whether the ski area's use of wooden corral posts was an "obvious and necessary" risk should have been a threshold question of fact decided by the jury. If the answer was affirmative, § 1037 would have entitled the ski area to a verdict as a matter of law. But if the answer was negative, then Frant's recovery should have been disallowed only if his negligence in encountering the risk posed by the corral post was greater than or equal to the ski area's negligence in creating that risk. See 12 V.S.A. § 1036 (comparative negligence). We reverse and remand for trial.

On a February day in 1987, ten-year-old Frant was skiing on the Haymaker Trail at Haystack Mountain, a trail he had already skied at least twice that day. Frant described himself as an intermediate-to-advanced skier who could handle most of the trails at mountains he had previously skied. The boy was injured when he skied into a lift corral, a holding area designed to funnel skiers into a row to board the lift. He struck one of a series of wooden posts supporting the rope lines of the corral. The unpadded post was four inches by four inches by eight feet tall and stood in frozen ground, having been installed before the ski season. Frant admitted he was skiing "pretty fast" and that he had seen the post on his earlier runs. In his words, he "messed up."

Haystack moved for summary judgment on the basis that the wooden post was an "obvious and necessary" danger inherent in downhill skiing, and, under 12 V.S.A. § 1037, Frant had assumed the risk of this danger as a matter of law. Frant opposed summary judgment by raising a disputed factual issue about whether the corral's unpadded wooden post construction, as opposed to the corral itself, was "necessary" within the meaning of 12 V.S.A. § 1037. Frant submitted the affidavit of a ski-area safety expert who stated that it was a common practice to pad corral posts in anticipation of skiers colliding with a post or pushing someone else into one. The affidavit further stated that there was "definitely a safer way of providing a [corral] line and support without using 4"' X 4"' posts," by using "forgivable [plastic] types." The expert's opinion was basically that Frant's injury was foreseeable and resulted from "a well known avoidable hazard in the ski industry." The trial court, nevertheless, held as a matter of law under 12 V.S.A. § 1037 that "a wooden guide post at the corral leading to the chair lift is an obvious and necessary risk."

This is our first opportunity to construe 12 V.S.A. § 1037. In order to interpret this statute, we must determine its intent by analyzing not only its language, but also its purpose, effects and consequences. See In re R.S. Audley, Inc., 151 Vt. 513, 517, 562 A.2d 1046, 1049 (1989). The avowed purpose for the statute was extensively set out in § 1 of the Act (preamble):

Since 1951, the law relating to liability of operators of ski areas in connection with downhill skiing injuries has been perceived to be governed by the doctrine of volenti non fit injuria as set forth in the case of Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786, decided by the United States District Court for Vermont. In 1976, in the case of Leopold v. Okemo Mountain, Inc., 420 F.Supp. 781, decided also by the United States District Court for Vermont, the doctrine of assumption of risk was held to be applicable in a downhill skiing injury case, despite the adoption of a comparative negligence statute by the Vermont General Assembly in 1970. In 1977, in the case of Sunday v. Stratton Corporation, [136 Vt. 293, 390 A.2d 398] the Superior Court for Chittenden County of the state of Vermont ruled that the defense of assumption of risk was inappropriate in a comparative negligence case involving a downhill skiing injury.

It is a purpose of this act to state the policy of this state which governs the liability of operators of ski areas with respect to skiing injury cases, including those resulting from both alpine and Nordic skiing, by affirming the principles of law set forth in Wright v. Mt. Mansfield Lift, Inc., and Leopold v. Okemo Mountain, Inc., which established that there are inherent dangers to be accepted by skiers as a matter of law.

1977, No. 119 (Adj.Sess.), § 1 (eff. Feb. 7, 1978). Therefore, to understand § 1037, we must begin by examining the common-law principles found in the Vermont federal and state cases mentioned in the statement of purpose, Wright, Leopold, and Sunday.

In Wright, the plaintiff broke her leg after colliding with a snow-covered tree stump while skiing down a trail in January 1949. Relying on the doctrine of volenti non fit injuria (one who consents cannot claim injury), the court held that those responsible for safety at Stowe's ski area were not liable for the accident. 96 F.Supp. at 791. The court reasoned that, when plaintiff chose to ski, she accepted "the dangers that inhere in [skiing] so far as they are obvious and necessary." Id. "Obvious," in this context, does not mean something easily observed by a skier who looked. To the contrary, the court stated the trail, at the place of the accident, "was smooth and covered with snow. There were no unexpected obstructions showing." Id. Rather, an obvious risk was one inherent in the nature of the sport. In skiing, tree stumps are an obvious risk because the trails are "areas cleared down the rough mountain side ... by cutting trees, by bulldozing and by other methods." Id. at 788. Tree stumps were a "necessary" risk because the effort required to remove them was deemed, at that time, to be an unreasonable burden. Indeed, it would be an "impossible" demand to expect that "the terrain of a ski trail down a mighty mountain" could reasonably be kept hazard-free. Id. at 791. Using a directed verdict standard, on facts most favorable to the plaintiff skier, the court held that the defendants owed no duty to protect their skiing patrons from stumps under the snow, and, therefore, skiers were deemed to have assumed the risk of injury skiing over the rough terrain. Id. at 790-91.

Twenty-five years later in Leopold, a case tried to court, the ski area was found not liable to the estate of a skier who was killed by colliding with an unpadded ski lift tower. 420 F.Supp. at 787. The court ruled that the tower was an obvious risk--obvious, not in the sense that word was used, as a term of art, in Wright, but in the sense that the plaintiff's decedent, an experienced skier familiar with the ski area, knew that the bright blue towers were unpadded and willingly risked colliding with a tower if he lost control while negotiating the trail. Id. The court also concluded that ski towers, which serve a useful purpose, were "more necessary to the sport of skiing than [the] hidden tree stumps" in Wright. Id. The court acknowledged that some risks presented by the towers--for example, that they were unpadded --were not "absolutely necessary" in that the ski area could have reduced or eliminated the risk before the accident. Id. at 786. But the court never reached the issue of the ski area's duty to do so, instead deciding the case on the skier's awareness of the risk. Id. at 787.

Although Leopold paid lip service to Wright, see id. ("we rely upon the principles of [Wright ] as the basis for the conclusion reached here"), the rationales of the two cases appear to be fundamentally incompatible. Because § 1037's preamble purports to adopt both Wright and Leopold, we must first see whether the two cases can be reconciled, and, if not, what principles the legislature intended to carry forward from the two cases into § 1037. The key to answering both questions is Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978), the third downhill skiing case, mentioned along with Wright and Leopold, in § 1037's preamble. The preamble refers to the trial court decision in Sunday, which was apparently the immediate impetus for enacting § 1037; this Court did not rule on the Sunday appeal until after § 1037 went into effect.

In Sunday, the plaintiff was injured after becoming entangled in concealed brush while skiing on a novice trail. 136 Vt. at 297-98, 390 A.2d at 401. The ski area moved for a directed verdict, claiming to rely on the assumption-of-risk standard declared in Wright. Id. at 297, 299, 390 A.2d at 400, 401. The trial court denied the motion, ruling that whether the concealed brush was an assumed risk was a disputed question of fact to be decided by the jury. It also ruled that the plaintiff's negligence, if any, in encountering the risk would be submitted to the jury under Vermont's comparative negligence statute, 12 V.S.A. § 1036.

Section 1037's preamble treats the trial court ruling in Sunday as a...