Lopez v. Ski Apache Resort, 11400

• Decision Date: 24 April 1992
• Docket Number: No. 11400,11400
• Citation: 114 N.M. 202,836 P.2d 648,1992 NMCA 47
• Parties: Maria B. LOPEZ, Guardian of the Person and Estate of Mary L. Branson, and Mary L. Branson, Plaintiffs-Appellants, v. SKI APACHE RESORT, Mescalero Apache Tribe, Inc., Apache Tribe of the Mescalero Reservation, and Roy Parker, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 648

836 P.2d 648

114 N.M. 202

Maria B. LOPEZ, Guardian of the Person and Estate of Mary L Branson, and Mary L. Branson, Plaintiffs-Appellants, v. SKI APACHE RESORT, Mescalero Apache Tribe, Inc., Apache Tribe of the Mescalero Reservation, and Roy Parker, Defendants-Appellees.

No. 11400.

Court of Appeals of New Mexico.

April 24, 1992.

Certiorari Denied June 17, 1992.

Michael W. Lilley, Lilley & Macias, P.A., Las Cruces, Woodrow W. Bean, III, El Paso, Tex., Cynthia A. Fry, Albuquerque, for plaintiffs-appellants.

Joe L. McClaugherty, McClaugherty, Silver & Downes, Santa Fe, for defendants-appellees.

William H. Carpenter, Chairman, Amicus Committee, New Mexico Trial Lawyers Ass'n, Michael B. Browde, Counsel for New Mexico Trial Lawyers Ass'n Albuquerque, for amicus curiae.

OPINION

DONNELLY, Judge.

Plaintiffs appeal from an order dismissing their claims against each of the Defendants, except as to C Tec, Inc., for damages resulting from personal injuries suffered by Mary L. Branson when she collided with a ski lift tower at the Ski Apache Resort. We address Plaintiffs' claims that the district court erred in determining that (1) the Ski Safety Act (Act), NMSA 1978, Sections 24-15-1 to -15-14 (Repl.Pamp.1991), constitutes Plaintiffs' exclusive remedy against Defendants; (2) Branson assumed the risk of injury under the Act and Defendants' alleged negligence was not subject to apportionment under comparative negligence principles; and (3) the Act did not impose a duty on Defendants to warn Branson of the risk of collision with the tower or to cushion or install protective devices on the lift tower. Other issues listed in the docketing statement but not briefed are deemed abandoned. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). For the reasons set forth herein, we reverse and remand.

FACTS

The parties stipulated, inter alia, that on February 26, 1986, Branson was skiing at Ski Apache Resort when she lost control, or fell, and collided with a lift tower located in the skiing area; the lift tower which Branson collided with was not surrounded by netting or protective padding; and the tower was plainly visible in the skiing area.

The parties also agreed that the references in Plaintiffs' complaint alleging violations of the Act by Defendants refer to " 'particular hazards or dangers,' " or " 'unusual obstacles or hazards,' " as used in the Act, and that use of the term "maintaining ski lifts in a 'safe condition' " in Plaintiffs' complaint refers only to the absence of protective devices on or around the lift tower with which Branson collided, the absence of markings at the top of the slope noting the presence of the lift tower, and to the absence of any warning concerning the potential danger to skiers presented by the unprotected lift tower.

The stipulation of facts entered into by the parties further recited:

6. There is no allegation that any violation of the ski area operator, its employees, officers, or agents of their duties under the Ski Safety Act contributed to cause Branson's fall or loss of control.

7. Any injuries or damages suffered by * * * Branson were as a result of her fall and/or collision with the lift tower.

8. Any injuries or damages suffered by * * * Branson were not a result of her being a passenger using a ski lift.

The parties made no stipulation regarding whether the lack of padding or other protection on or around the lift tower was visible or known to Branson.

STANDARD OF REVIEW

In examining the propriety of the district court's dismissal of Plaintiffs' complaint, we first identify the standard of review applicable to the district court's order dismissing Plaintiffs' complaint. Defendants moved to dismiss Plaintiffs' complaint on the basis that it failed to set forth viable claims upon which relief could be granted and, alternatively, sought an award of summary judgment. See SCRA 1986, 1-012(B)(6) and -056. In its order dismissing Plaintiffs' complaint, the court stated:

Based upon the Plaintiffs' Complaint and the stipulations of counsel, it is undisputed that * * * (Ms. Branson) lost control or fell while skiing, losing control of her speed and course and colliding with a lift tower. * * * [S]he violated her duties under the New Mexico Ski Safety Act, and, as a matter of law, assumed the specific risks which caused her injury so that the * * * Act bars any recovery * * * for those injuries.

The court's decision to grant the motion was based on matters alleged in the pleadings, facts stipulated to by the parties, and the record containing affidavits submitted by the parties both in support and opposition to Defendants' motions; thus, on appeal we review the court's order dismissing Plaintiffs' claims as a motion for summary judgment. See Peck v. Title USA Ins. Corp., 108 N.M. 30, 766 P.2d 290 (1988) (motion to dismiss for failure to state claim upon which relief can be granted correctly treated as motion for summary judgment where matters outside pleadings were presented); Rivera v. King, 108 N.M. 5, 765 P.2d 1187 (Ct.App.1988) (where matters outside pleadings are presented in support of motion to dismiss, the motion is treated as one for summary judgment).

SKI SAFETY ACT CLAIMS

1. Does the Act Provide the Exclusive Remedy?

The district court's order dismissing Plaintiffs' complaint held in part that the Act

is the sole and exclusive remedy in any action between a skier and a ski area operator and excludes all common law claims other than the two expressly reserved in the Act, which are the common law principle of vicarious liability of the ski area operator for willful or negligent violations of the duties listed in Sections [24-15-7 and -15-8] of the Act by principals, agents, or employees of the ski area operator [Section 24-15-11] and the right to claim that a violation of the duties of Section [24-15-8] of the Act can be based upon a negligence standard of review [Section 24-15-14(A) ].

Based upon its construction of the Act, the court ruled that "all claims of the Plaintiffs against Defendants other than Defendant CTEC [sic], Inc., * * * which are outside the provisions of the * * * Act are * * * dismissed with prejudice."

During the pendency of this appeal, Plaintiffs moved to amend their docketing statement to raise two additional issues. The first issue sought to be asserted involved the question of whether the district court erred in dismissing their claim against Defendants "for ordinary negligence, by holding that the * * * Act was their exclusive remedy against the Defendants."

At the hearing on the motion to dismiss, counsel for Plaintiffs conceded that the provisions of the Act were controlling as to their claims against the ski area operator, but not with respect to their claims against C Tec, Inc., alleging negligent design, manufacture and installation of the ski lift towers installed at Ski Apache Resort. We agree with the district court's determination that the provisions of the Act were intended by the legislature to exclusively control each of Plaintiffs' claims herein, except as to those claims directed against C Tec, Inc. See Schmick v. State Farm Mut. Auto. Ins. Co., 103 N.M. 216, 704 P.2d 1092 (1985) (in discerning legislative intent, court looks not only to language of statute but also to purposes and objectives of legislature).

2. Applicability of Doctrine of Comparative Negligence and Defense of Assumption of Risk

Plaintiffs argue that even if the Act is found to control certain of their claims, nevertheless, the district court misinterpreted its provisions and that disputed material factual issues existed concerning their allegations that Defendants also breached duties imposed upon them under the Act. Plaintiffs contend that the Act does not preclude fault and liability from being apportioned between the parties under comparative negligence principles where disputed factual issues exist as to whether both the ski area operator and a skier have negligently breached duties imposed upon them under the Act, and such negligence proximately results in injury to a skier. We agree.

Review of the Act's purposes and provisions indicates a legislative intent to promote ski safety practices, to detail the duties imposed upon both skiers and ski area operators, and to specify the consequences resulting from the violation of such duties. See Wood v. Angel Fire Ski Corp., 108 N.M. 453, 774 P.2d 447 (Ct.App.1989). Section 24-15-7 outlines the duties of ski area operators incident to the operation of the skiing areas, including the duty of marking ski trails or runs with symbols indicating their degree of difficulty, and the responsibility "to warn of or correct particular hazards or dangers known to the operator where feasible to do so." Sec. 24-15-7(I). Section 24-15-8 enumerates duties of the ski area operator in respect to the operation of the ski lifts. Correspondingly, the Act details the responsibilities of ski lift passengers under Section 24-15-9, and the duties imposed upon skiers under Section 24-15-10.

The Act was adopted in 1969 and, although its original provisions prescribed responsibilities of both ski lift operators and individual skiers, the initial legislation sought to assure the safe operation of ski lifts and required that ski area operators obtain liability insurance prior to operating ski lifts or tramways. See 1969 N.M.Laws, ch. 218. In 1979 the Act was substantially amended, broadening its provisions and delineating in greater detail the duties and responsibilities of both the ski operators and skiers. See 1979 N.M.Laws, ch. 279; see also Wood v. Angel Fire Ski Corp.

Section 24-15-2 of the Act states that the "primary responsibility for the safety of the individual skier * * * rests with the skier himself." This same section also provides:

It is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to...