Grummitt v. Sturgeon Bay Winter Sports Club

• Decision Date: 28 January 1966
• Docket Number: No. 15113.,15113.
• Citation: 354 F.2d 564
• Parties: Dennis GRUMMITT, Plaintiff-Appellee, v. STURGEON BAY WINTER SPORTS CLUB OF STURGEON BAY, WISCONSIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

354 F.2d 564 (1965)

Dennis GRUMMITT, Plaintiff-Appellee, v. STURGEON BAY WINTER SPORTS CLUB OF STURGEON BAY, WISCONSIN, Defendant-Appellant.

No. 15113.

United States Court of Appeals Seventh Circuit.

December 22, 1965.

Rehearing Denied January 28, 1966.

Richard E. Mueller, Chicago, Ill., Gerald P. Hayes, Milwaukee, Wis., for defendant-appellant, Lord, Bissell & Brook, Chicago, Ill., of counsel.

Arthur Aaron Ellis, Morris William Ellis, Herbert A. Ellis, Chicago, Ill., for plaintiff-appellee, Ellis & Ellis, Chicago, Ill., of counsel.

Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and MAJOR, Senior Circuit Judge.

CASTLE, Circuit Judge.

Dennis Grummitt, the plaintiff-appellee, brought this diversity action in the District Court against the Sturgeon Bay Winter Sports Club of Sturgeon Bay, Wisconsin, the defendant-appellant, seeking damages for injuries sustained by plaintiff allegedly caused by the negligence of the defendant in the operation of a toboggan slide or chute at the Potawatomie State Park at Sturgeon Bay, Wisconsin. The cause was submitted to the jury in the form of a special verdict consisting of six questions. In the answers contained in its verdict the jury found the defendant negligent with respect to maintenance of the toboggan slide insofar as the condition of its surface was concerned and in permitting the plaintiff to use the slide; that such negligence was the sole efficient cause of the plaintiff's injuries; and awarded plaintiff $50,200.00 for medical care and expense,¹ pain, suffering, and disability. Judgment was entered on the verdict and the defendant appealed.

From the contentions advanced on appeal we conceive the main contested issues to be (1) whether the court erred in concluding as a matter of law, or, in the alternative, in not submitting the issue for determination by the jury, that the defendant was the operator of the toboggan slide, responsible for its control and the maintenance of its surface; (2) whether the evidence supports the jury's finding that defendant was negligent; (3) whether the court erred in its instruction concerning elements of damages; and (4) whether plaintiff's claim was barred by limitations.

The record discloses that on December 29, 1956, the plaintiff, then seventeen years of age, in the company of his brother, David Grummitt, and two other companions, all of whom had tobogganed on prior occasions, went to Potawatomie State Park to engage in winter sports. They rented a toboggan from the defendant, paid the fee for use of the tobogganing facilities, and tobogganed the entire day, using the slide in question, without incident. On the following morning it was snowing and the snowfall became progressively heavier. Plaintiff, in the company of his companions, rented a toboggan from the defendant and paid the fifty cent fee for use of the tow and the slide. The four boys tobogganed all morning without difficulty. The ride down the chute was smooth. After a two hour interval for lunch the boys returned to resume their tobogganing activities. On the first trip down the toboggan began to vibrate violently and to whip back and forth rapidly from side to side in the chute, bumping up and down, as it attained a speed of approximately seventy miles per hour. The toboggan lifted out of the chute or slide, throwing the occupants off, and the plaintiff was severely injured.

The boy in first position on the toboggan, David Grummitt, testified that about three-quarters of the way down the slide the excessive vibration and the tremendous pressure on his legs forced his leg out of the front curvature of the toboggan and over the left side of the chute causing his foot to strike a support or cross-tie and all of the boys were thrown from the toboggan.

The defendant produced no occurrence witnesses. The testimony of the plaintiff, and of his companions who testified, was to the effect that the rough bouncing motion of the toboggan in its descent was due to an uneven accumulation of snow and ice in the chute or slide; that there was a variation of from one quarter of an inch to two inches of snow, forming mounds; that the surface was rough, like a scrub board with large gaps; and that the toboggan, in going over these unevenly distributed snow patches, went from side to side in a vibratory or oscillatory manner, and up and down in a bumpy manner. The approach to and entry into the chute did not afford plaintiff a prior view of the surface of the chute.

The sides of the chute or slide consisted of smooth metal channel irons or I-beams six inches high; the floor or bottom was of narrow one-inch lumber laid lengthwise and supported by beams similar to railroad cross-ties. The width of the chute afforded from two to two and one-half inches clearance for the toboggan.

The State of Wisconsin is the owner of the park and the permanent improvements therein including the toboggan tow and the toboggan slide or chute. On the date involved a concession contract between the State, acting through its Conservation Commission, and the defendant Club provided, among other things that "the operation of the facilities on the area dedicated to skiing and winter sports" was granted as a concession to the defendant Club. The defendant, as lessee, was to have the use of all permanent improvements provided by the lessor, and "the management of the winter sports area, including the furnishing of winter sports supplies and services". The fifty cent toboggan tow fee, payment of which was prerequisite to use of the chute or slide, was included in the gross income derived from the area which was to be shared by the State and the Club after certain designated exceptions or deductions which included expenditures for insurance premiums; and the lessee was required to provide liability insurance to save the lessor harmless and to protect the using public against loss from injuries arising from negligence or other legal fault of the lessee. The contract specifically reserved to the lessor "full charge of the operation of the toboggan and ski tows".

The District Court did not err in concluding as a matter of law that the operation of the toboggan...