Marshall v. Town of Brattleboro, 1145

• Decision Date: 02 March 1960
• Docket Number: No. 1145,1145
• Citation: 121 Vt. 417,160 A.2d 762
• Parties: Thomas Harry MARSHALL b.n.f. Harry G. Marshall v. TOWN OF BRATTLEBORO, William Sorton and Thomas Leamey.
• Court: Vermont Supreme Court

Page 762

160 A.2d 762

121 Vt. 417

Thomas Harry MARSHALL b.n.f. Harry G. Marshall v. TOWN OF BRATTLEBORO, William Sorton and Thomas Leamey.

No. 1145.

Supreme Court of Vermont.

March 2, 1960.

Reargument Denied May 16, 1960.

Gibson & Dier, A. Luke Crispe, Brattleboro, for plaintiff.

John S. Burgess, Ralph Chapman, Brattleboro, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

The well-pleaded facts admitted by the Town of Brattleboro for the purpose of testing its demurrer and available for weighing the pleas in bar of William Sorton and Thomas Leamey are as follows:

On December 22, 1956, Thomas Harry Marshall went to the Living Memorial Park in Brattleboro to ski. The park is operated by the Town of Brattleboro through its recreation department. On that day that department was operating a rope ski tow at the ski area in the park. William Sorton was employed by the town to supervise the ski area, and Thomas Leamey and one Ernest LaFortune were employed by the town to operate the ski tow, on the day in question. This tow was equipped with a safety switch to prevent injury to persons who were unable or who failed to release themselves from the tow before reaching the upper mechanism. The appellant, Thomas Marshall, while riding up on the tow, had his jacket become entangled in the rope in such a manner that he was carried by the debarkation point, through the safety switch and into the mechanism. As a consequence he received permanent injuries to his right arm and shoulder. A second switch at one end of the tow had been put in a position that rendered the safety switch at the top inoperative. Although fees were ordinarily charged for the use of the facilities, on the day of the accident skiers were being given free use of the tow in return for the service of 'breaking out' the ski area. In his complaint appellant denied contributory negligence.

Appellees Sorton and Leamey interposed in bar of the action a plea of a statute of limitations coupled with a general denial; and appellee Town of Brattleboro grounded its demurrer on a claim of sovereign immunity based on the exercise of a function claimed to be governmental in character, that of operating a public park. The court below upheld the pleas in bar and sustained the demurrer. With the permission of the trial court, appellant's exceptions to these rulings were certified to this Court before final judgment.

The statute of limitations pleaded by appellees Sorton and Leamey is 12 V.S.A. § 513, which provides:

'An action to recover for injuries sustained while participating in the sport of skiing shall be commenced within one year after the cause of action accrues, and not after.'

The appellant contends that this statute was intended by the Legislature to apply only to 'downhill' skiing, while the appellees say that there is no such limitation. The specific question raised by this case is whether or not this statute applies to an injury occurring because of the improper operation of a mechanical rope tow device while it is transporting a skier uphill. Other than those coming under this statute, actions for injury to the person suffered by the act or default of another must be commenced within three years after the cause of action accrues. 12 V.S.A. § 512.

Among other things, rules of construction of statutes call for a determination of the intent of the Legislature by weighing the consequences of various constructions, beginning with the most literal, against the general objectives of the enactment. First National Bank of Boston v. Harvey, 111 Vt. 281, 292, 16 A.2d 184. The Legislature has seen fit to put a more stringent limitation on the time of bringing actions on behalf of persons injured while skiing. This is not one of the class of statutes called remedial, which are accorded liberal construction. It is a curtailment of the appellant's remedy for the wrong claimed, and the applicability of the statute must receive strict construction. Coral Gables, Inc. v. Christopher, 108 Vt. 414, 418, 189 A. 147, 109 A.L.R. 474.

The appellees have asked that this Court take judicial notice of the fact that the use of rope ski tows requires the user to be on skis. In considering the application of the statute it would be appropriate that judicial notice be taken of all of the varying types of ski tows and lifts possibly to be affected by this statute. It is reasonable to believe that the Legislature had them in mind at the time of enactment. Anchor Hocking v. Barber, 118 Vt. 206, 218, 105 A.2d 271; Brammall v. Larose, 105 Vt. 345, 350, 165 A. 916. Many other of the mechanical devices for transporting skiers up the slopes do not require the user to be on skis, and often function to transport sightseers, both winter and summer. The application contended for by the appellees could mean that a skier and a sightseer, simultaneously injured in the same accident on such a ski lift, would be subject to different statutes of limitation. On the other hand, it is not reasonable to conclude that the Legislature intended to confer the benefit of the statute only upon the areas using rope tow devices, thereby burdening the owners of other types of equipment. This is the type of unfair or unreasonable result to be avoided in statutory construction. Gould v. Towslee, 117 Vt. 452, 459, 94 A.2d 416.

The language of the Legislature in referring to the 'sport' of skiing supports the inference that the statute was not intended to apply to the operation of transporting skiers mechanically. The statute becomes purposeful when its application is restricted to activities on skis where the skier undertakes to exercise independent control of his course, direction, speed and skiing method in the skiing area furnished. The failure of the Legislature to incorporate the word 'downhill' as a technical term in the statute can be reconciled with this interpretation as an intent to avoid any limitation on the availability of the statute based on whether a skier was ascending or descending a slope. The risks assumed incident to the sport of skiing, noted in Wright v. Mt. Mansfield Lift, D.C., 96 F.Supp. 786, 791, do not include risk of harm from a mechanically unsafe or improperly operated transporting device not controlled by the skier. The distinguishing aspect of the sport of skiing to which this statute applies pertains to the risk of injury incident to the skier's attempt to cope independently with conditions of snow and ice, terrain, weather and the activities of other skiers, while using the ski area. We hold, therefore, that a skier being transported on a mechanical ski tow who is injured through the operation of the tow is not so participating in the sport of skiing as to be subject to the provisions of 12 V.S.A. § 513. This being so, it is unnecessary to determine the effect of the claimed infancy of the appellant on the application of the statute of limitations. It was error to adjudge the plea of the statute in bar by appellees Sorton and Leamey sufficient in law.

On the authority of Lemieux v. St. Albans, 112 Vt. 512, 28 A.2d 373, the appellee Town of Brattleboro maintains its demurrer was properly sustained. On the other hand, appellant not only claims that the Lemieux case has no application here, but goes on to challenge the basis of the sovereign immunity doctrine and the origins of municipal tort immunity as based on the famous case of Russell v. The Men of Devon, 2 Durn. and East 667, 100 Eng.Rep. 359 (1788). Admittedly, the doctrines supporting municipal immunity from various tort liabilities have met with a great deal of criticism. See Fuller and Casner, 'Municipal Tort Liability in Operation' (1941) 54 Harv.L.Rev. 437; Seasongood, 'Municipal Corporations: Objections to the Governmental or Proprietary Test' (1936) 22 Va.L.Rev. 910; 18 McQuillin, 'Municipal Corporations', § 53.23-.24 (3d ed. 1950).

The early cases of Baxter v. Winooski Turnpike Co., 22 Vt. 114 and Hyde v. Jamaica, 27 Vt. 443, refer to the Russell case for their authority. At page 123, as the doctrine sustaining limited municipal liability, the Baxter case states, 'It is better that an individual should sustain an injury than that the public should suffer an inconvenience.' 'Inconvenience' refers to multiple litigation between inhabitants for enforcing equal contribution to a tort recovery. No suggestion that a municipality derives immunity from some sovereign source is made in either the Russell case or these early Vermont cases. This doctrine of public convenience over private injury has not been applied where the injury amounts to the damaging or taking of private property for public use, although constitutional guarantees are not referred to, either. See Griswold v. Weathersfield, 117 Vt. 224, 88 A.2d 829; Haynes v. Town of Burlington, 38 Vt. 350; and Winn v. Village of Rutland, 52 Vt. 481. The Winn case posited its result on a distinction drawn between certain public duties imposed upon municipalities by their charter which they are required to perform for the State, and certain powers given in the charter for the purpose of realizing benefits to the inhabitants of the village itself. For the purpose of public duties the municipalities are merely convenient instrumentalities of the State, and no private right of action for negligent acts in connection with these duties arises unless given by statute. The powers given in the charter for the benefit of the municipality are proprietary in nature and carry with them the obligation to exercise the power so as to work no unnecessary injury to persons or property, and to exercise ordinary care and skill in construction. Winn v. Village of Rutland, supra, pages 491 and 492. This case was followed in about three years by Welsh v. Village of Rutland, 56 Vt. 228, 48 Am.Rep. 762, frequently cited as the leading case in this jurisdiction in establishing the tests for municipal tort liability. The old...