Kidd v. Taos Ski Valley, Inc.

Decision Date05 July 1996
Docket NumberNo. 95-2066,95-2066
Citation88 F.3d 848
PartiesBecky J. KIDD, Plaintiff-Appellant, v. TAOS SKI VALLEY, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Grant Marylander (Jim Leventhal and Natalie Brown, of Leventhal & Bogue, Denver, Colorado, and Marion J. Craig, III, Roswell, New Mexico, with him on the briefs), of Leventhal & Bogue, Denver, Colorado, for Plaintiff-Appellant.

Joe L. McClaugherty (Jere K. Smith, with him on the brief), Santa Fe, New Mexico, for Defendant-Appellee.

Before BRORBY, BARRETT, and LIVELY *, Circuit Judges.

BARRETT, Senior Circuit Judge.

Becky J. Kidd (Kidd) appeals from a memorandum opinion and order granting Taos Ski Valley, Inc. (TSV) summary judgment and dismissing her complaint with prejudice.

Kidd suffered a broken back, ribs, hip, and pelvis in a skiing accident at TSV. "Her injuries were possibly received when she crossed a diversionary rope located on an area permanently marked as a slow skiing area by a huge orange banner." (Appellant's Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445). "The black and yellow rope, held up by bamboo poles and marked with strips of orange fluorescent flagging, was intended to close off a portion of the mountain to prevent collisions between skiers returning to the base from different sides of the mountain." Id. "Plaintiff, an experienced TSV skier, never saw the rope closure." Id. at 445-46.

Kidd filed a complaint in which she alleged, inter alia, that: TSV, in installing the diversionary rope, had breached its obligations under New Mexico's Ski Safety Act, N.M. Stat. Ann. §§ 24-15-1, et seq. (the Act), by failing to properly mark, warn and/or correct a dangerous hazard created by the suspension of the rope between two poles (Count I); TSV had acted with wanton or gross negligence in maintaining the unmarked rope and she was, accordingly, entitled to punitive damages (Count II); TSV breached it contractual obligations under a special use permit with the United States under which she was a third party beneficiary (Count III); and TSV's installation of the rope created an inherently dangerous condition, thereby imposing the duty of highest care on TSV (Count IV).

TSV moved to dismiss Counts II, III, and IV for failure to state a claim upon which relief could be granted. The district court denied TSV's motion to dismiss Kidd's Count II punitive damage claim, concluding that although the Act was silent on the availability of punitive damages, general New Mexico law principles allowed for the recovery of punitive damages in limited circumstances, including conduct committed with a wanton disregard of a plaintiff's rights. The district court did, however, grant TSV's motion to dismiss Counts III and IV, Kidd's third party beneficiary and inherently dangerous condition claims.

In dismissing Count III, the district court concluded that the "language of the statute indicates that the legislature intended the Act as the sole remedy for skiers" and that New Mexico case law "provide[s] persuasive authority indicating that the state courts would reject Plaintiff's theory of liability based on a third party beneficiary cause of action." (Appellant's Appendix, Vol. I at 73-74). In dismissing Count IV, the district court concluded that the inherently dangerous activity doctrine "is inconsistent with the Act because it would permit the imposition of additional duties on ski operators" and that the "Act was intended to limit the duties which can be imposed upon ski area operators [and] therefore forecloses the application of the" doctrine. Id. at 75-76. Kidd's subsequent motion for reconsideration of the dismissal of Count III was denied.

Thereafter, TSV moved for summary judgment on Kidd's remaining claims and Kidd moved for partial summary judgment on the issue of TSV's negligence. Following briefing, the district court entered a memorandum opinion and order granting TSV summary judgment and dismissing Kidd's complaint with prejudice. In so doing, the district court found that: although TSV offered convincing evidence that Kidd breached her duty to ski safely, Kidd's testimony that she was not skiing out of control created a genuine issue of material fact making summary judgment improper, (Appellant's Appendix, Vol. II at 447); Kidd failed to produce competent evidence from which a reasonable juror could conclude that the rope closure was not in accordance with industry usage and National Ski Area Association (NSAA) standards, id. at 449; and, no reasonable juror could conclude that the closure itself created a hazard under the Act requiring TSV to warn skiers of its presence. Id. at 451.

On appeal, Kidd contends that the district court erred when it granted TSV's motion for summary judgment, barred her from obtaining critical discovery, and dismissed her third party beneficiary claim.

I.

Kidd contends that the district court erred when it granted summary judgment in favor of TSV. Kidd argues that summary judgment was erroneous because she presented substantial evidence that TSV breached its duties under §§ 24-15-7(I) and (C) of the Act.

We review a district court's grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Lancaster v. Air Line Pilots Ass'n Int'l., 76 F.3d 1509, 1516 (10th Cir.1996). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Hagelin for President Comm. of Kan. v. Graves, 25 F.3d 956, 959 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 934, 130 L.Ed.2d 880 (1995). When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the non-moving/opposing party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995).

a.

Kidd asserts that summary judgment was inappropriate because there was substantial evidence that TSV breached its duty under § 24-15-7(I) of the Act. This section provides that "[e]very ski area operator shall have the following duties with respect to the operation of a skiing area: ... to warn of or correct particular hazards or dangers known to the operator where feasible to do so."

Kidd argues that TSV breached this duty when it installed the single strand diversionary rope and blocked off an otherwise skiable area without giving the skier sufficient warning. The district court rejected these arguments, concluding that:

The evidence submitted by the parties in this case demonstrates as a matter of law that the TSV rope closure, by virtue of its location and purpose, cannot qualify as a hazard under the Act. The rope is located in a well-marked slow skiing zone near the base of the mountain. The closure serves to prevent, not cause, collisions between skiers returning to the base area. Moreover, the undisputed evidence shows that the rope has been in place since 1978, and [over one] million skiers have managed to ski past it without injury.

(Appellant's Appendix, Vol. II at 447).

Kidd maintains that this conclusion was erroneous and that summary judgment improper when, as here: TSV's expert acknowledged that a rope between two poles on a ski slope could be a hazard if a skier did not have time to react to the rope or could not see it. (Appellant's Appendix, Vol. II at 333); the evidence was undisputed that Kidd, an experienced TSV skier did not see the rope, id. at 445-46; Kidd presented the testimony of another skier who stated that the "rope was not reasonably visible" and that "[i]n skiing down the slope to Becky J. Kidd I did not see the rope," id. at 309; and photographs taken immediately after the accident demonstrated the rope's lack of visibility against the white background.

TSV responds that summary judgment was proper based on the undisputed evidence that the area of Kidd's accident had been marked off and closed to skiing for at least twelve years without incident and its expert's testimony that the rope did not create a hazardous situation and that the rope complied with the Act. TSV also maintains that a ski area operator's duty to warn of or correct particular hazards or dangers under § 24-15-7(I) is limited to those hazards or dangers which are known to the operator and that Kidd failed to present any evidence that TSV knew that the rope closure was a hazard.

Although the determination of "[w]hether a duty [under the Act] has been breached is a question of fact," Lopez v. Ski Apache Resort, 114 N.M. 202, 836 P.2d 648, 655 (Ct.App.), cert. denied, 113 N.M. 815, 833 P.2d 1181 (1992), the determination of "[w]hether a duty exists is generally a question of law for the court to determine." Id. As a matter of law, the duty imposed on ski area operators by § 24-15-7(I) "is limited to situations where the particular hazard is both known to the ski area operator and warning of or correcting the particular hazard is feasible." Id. 836 P.2d at 656 (emphasis original).

Applying Lopez, we hold that the district court did not err in granting TSV summary judgment on Kidd's § 24-15-7(I) claim. Kidd failed to present any probative evidence that the diversionary rope in question was a "particular hazard ... known to" TSV. On the contrary, the undisputed evidence was that the rope had been in place since 1978 and over one million skiers had managed to ski past it without injury. Therefore, TSV was entitled to judgment on this claim as a matter of law.

b.

Kidd reasons that she presented substantial evidence that TSV breached its duty under § 24-15-7(C) of the act making summary judgment on this claim improper.

Section 24-15-7(C) provides:

Every ski operator shall have the following duties with respect to the operation of a skiing area:

* * *

to mark conspicuously the top or entrance to each slope, trail or area with the appropriate symbol for its relative degree of...

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    • James Publishing Practical Law Books Archive Handling Federal Discovery - 2019 Contents
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    ...refuse to permit identiication of additional witnesses after the date designated in the pre-trial order. See Kidd v. Taos Ski Valley , 88 F. 3d 848, 854 (10th Cir. 1996). D. If you seek to amend a pleading after the date speciied in the scheduling order, you must show good cause for the ame......
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    • United States
    • James Publishing Practical Law Books Archive Handling Federal Discovery - 2018 Contents
    • August 8, 2018
    ...refuse to permit identiication of additional witnesses after the date designated in the pre-trial order. See Kidd v. Taos Ski Valley , 88 F. 3d 848, 854 (10th Cir. 1996). D. If you seek to amend a pleading after the date speciied in the scheduling order, you must show good cause for the ame......
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