Merrill v. Sugarloaf Mountain Corp.

• Decision Date: 03 February 2000
• Citation: 745 A.2d 378,2000 ME 16
• Parties: James MERRILL v. SUGARLOAF MOUNTAIN CORPORATION.
• Court: Maine Supreme Court

745 A.2d 378

2000 ME 16

James MERRILL v. SUGARLOAF MOUNTAIN CORPORATION.

Supreme Judicial Court of Maine.

Argued January 4, 2000.

Decided February 3, 2000.

N. Laurence Willey Jr. (orally), Ferris, Dearborn & Willey, Brewer, for plaintiff.

Evan M. Hansen (orally), Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, for defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, SAUFLEY, ALEXANDER, and CALKINS, JJ.

ALEXANDER, J.

[¶ 1] James Merrill appeals the judgment of the Superior Court (Penobscot County, Kravchuk, C.J.) entered on a jury verdict finding that the injuries sustained by Merrill while skiing at Sugarloaf Mountain were not caused by the negligent acts or omissions of Sugarloaf Mountain Corporation, but rather by risks inherent in the sport of skiing. Merrill's primary argument on appeal is that the trial court erred by instructing the jury that to recover on his negligence claim he bore the burden of proving that his injuries were not caused by a danger inherent in the sport of skiing pursuant to 26 M.R.S.A. § 488. See 26 M.R.S.A. § 488 (1988), repealed by P.L. 1995, ch. 560, § 9 (effective October 1, 1996).¹ Because the jury instructions misapplied the burden of proof at issue in this case, we vacate.

I. CASE HISTORY

[¶ 2] The record indicates the following case history. On December 26, 1993, James Merrill and three friends went skiing at Sugarloaf Mountain, owned and operated by the Sugarloaf Mountain Corporation (Sugarloaf). In the afternoon, the four friends skied down the Skidder Trail, an expert trail along its upper course and an intermediate trail along its lower course. The lower, intermediate portion of the Skidder Trail is intersected by another trail called the Peavey Crosscut, near where the trail is crossed by a water bar.

[¶ 3] Peter McKendry, Sugarloaf's ski patrol director, testified that the water bar is a portion of a stream bed that meanders down Sugarloaf Mountain. Sugarloaf constructed the water bar to channel water across the trail so that it would not run down the trail washing out the snow in its path. When there is no snow, the water bar appears as a ditch lined with rocks. Although the water bar is a few feet deep, it gradually fills in with snow in the winter. According to McKendry, the water running in the water bar does not typically freeze until mid-January and, until it does, the water passing through the ditch washes out snow that falls on it, leaving a wet depression or slight ditch across an otherwise snow-covered trail. McKendry testified that the water bar is a naturally recurring condition that Sugarloaf monitors and marks according to the relative size of the depression. He testified that there are "a hundred or more" water bars on the mountain.

[¶ 4] On the day in question, Sugarloaf had marked the Peavey Crosscut water bar with two crossed bamboo poles atop the depression. There was approximately 25 feet of open trail to the left of the poles and approximately 15 feet to the right. According to Merrill, he skied to the right of the bamboo poles assuming the way was clear, entered a washed out portion of the water bar, lost control, fell, and shattered his right leg near the ankle joint.

[¶ 5] Before submitting the case to the jury, the court instructed the jury, over Merrill's objection:

In this case, James Merrill alleges that Sugarloaf Mountain Corporation negligently caused his injuries. In order to prevail on this claim, James Merrill must prove by a preponderance of the evidence that his injuries were not caused by risks inherent in the sport of skiing and that Sugarloaf Mountain Corporation was negligent in the operation or maintenance of the ski area....

Thus, the court required Merrill to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence, in order to demonstrate causation. The jury returned a verdict in favor of Sugarloaf, answering "no" to the following first question on the verdict form:

1. If James Merrill's injuries were not the result of an inherent risk of skiing, was Sugarloaf Mountain Corporation negligent in the operation and/or maintenance of its ski trails, and was its negligence an actual cause of James Merrill's injuries?

Merrill's motions for judgment as a matter of law and a new trial were denied by the court. Merrill filed a timely appeal to this Court.

II. DISCUSSION

[¶ 6] This is the second time this case has been before us. See Merrill v. Sugarloaf Mountain Corp., 1997 ME 180, 698 A.2d 1042 (Merrill I)

. In Merrill I, we vacated the entry of summary judgment against Merrill concluding that the court had "erred in deciding as a matter of law that the drainage ditch posed a risk inherent in the sport of skiing." Id., ¶ 8 at 1045. In the way Merrill I was postured, we held that whether Merrill's injuries were caused by an inherent risk was "a question of fact that must be submitted to the jury" and that the facts could allow the jury to find that the water bar was not an inherent danger or that Sugarloaf had negligently signalled skiers that they could safely ski to either side of the bamboo poles. See id. [¶ 7] After the trial that generates this appeal, we decided Hansen v. Sunday River Skiway Corp., 1999 ME 45, 726 A.2d 220. In Hansen, Sunday River appealed from the judgment of the Superior Court entered on a jury verdict adverse to Sunday River. See id., ¶ 1 at 221. Sunday River argued that the court's judgment must be vacated because, inter alia, the court had failed to instruct the jury that the plaintiff² had the burden of proving that the decedent's injuries were not caused by an inherent risk of skiing pursuant to 26 M.R.S.A. § 488. See id., ¶ 8 at 223. We affirmed the judgment, holding that the court had adequately instructed the jury that the plaintiff must prove that Sunday River's negligence entitled it to recovery. See id., ¶ 11.

[¶ 8] Section 488 of Title 26 states in pertinent part that "each skier ... shall be deemed to have assumed the risk of the dangers inherent in the sport ... unless the injury or death was actually caused by the negligent operation or maintenance of the ski area by the ski area operator...." 26 M.R.S.A. § 488 (1988). Pursuant to this repealed statute, Maine's ski slope operators could only be liable for a skier's injuries or death if the injuries or death were caused by the operator's negligent operation or maintenance of the ski area.

[¶ 9] Sugarloaf argues that section 488 provides ski slope operators with a "primary" assumption of the risk defense. Generally, primary assumption of the risk describes a situation in which the defendant is held to owe the plaintiff no duty because the plaintiff has assumed the risk of his voluntary activities. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS, § 68 at 480-81 & 496-97 (5th ed.1984). In contrast, secondary assumption of the risk describes a situation in which the defendant's negligence is already established, but the plaintiff has proceeded voluntarily to encounter it. See id. at 481. According to Sugarloaf, primary assumption of the risk is a defense that shifts the burden of proof to the plaintiff to prove that he or she did not assume the risk. However, prior to enactment of our comparative fault law, we held in a primary assumption of the risk context that assumption of the risk is an affirmative defense with the burden of proof on the defendant.³ See Corbett v. Curtis, 225 A.2d 402, 409 (Me.1967)

. In the context of a skiing injury, Sugarloaf contends that section 488 gives ski slope operators an absolute defense unless the skier overcomes the burden of proof that his or her injuries were not proximately caused by dangers inherent in the sport of skiing.

[¶ 10] Sugarloaf's argument is derived from a group of cases construing Vermont's Sports Injury Statute. See Estate of Frant v. Haystack Group, Inc., 162 Vt. 11, 641 A.2d 765, 769 (1994)

(construing Vermont's Sports Injury Statute as providing a primary assumption of the risk defense); Sklar v. Okemo Mountain, Inc., 877 F.Supp. 85, 88 (D.Conn.1995) (assigning the burden of proof on the primary assumption of the risk issue to plaintiff). The language of the Vermont Sports Injury Statute is different from the language of section 488. See Vt. Stat. Ann. tit. 12, § 1037 (1991) ("[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.").

[¶ 11] Unlike the language used by the Vermont Legislature, the plain language of section 488 does not support the application of a primary assumption of the risk defense. The most fundamental rule of statutory construction is the plain meaning rule. When statutory language is plain and unambiguous, there is no need to resort to any other rules of statutory construction. See State v. Harris, 1999 ME 80, ¶ 13, 730 A.2d 1249, 1251

. Section 488 provides that skiers are "deemed to have assumed the risk" if their injuries or deaths are caused by inherent dangers "unless" they can prove negligent operation or maintenance by the ski slope operator. 26 M.R.S.A. § 488 (emphasis added). Section 488 does not provide a primary assumption of the risk defense like the one given in the Vermont statute, it also lacks any language that adds proof of the nonexistence of an inherent risk to the elements of a skier's negligence claim. Thus, section 488 establishes a relatively simple and straightforward process: first, it protects ski area operators from strict liability claims that otherwise might arise from allegations that ski area operation is an inherently dangerous activity;⁴ second, it states that establishing liability requires an injured skier to prove that their damages have been "caused by the negligent operation or maintenance of the ski area."

[¶ 12] For liability to attach, the plaintiff skier must affirmatively prove negligence, but need not disprove inherent risk. A...