Murray v. Great Gorge Resort, Inc.

• Decision Date: 10 January 2003
• Citation: 823 A.2d 101,360 N.J. Super. 395
• Parties: Michael MURRAY, Plaintiff, v. GREAT GORGE RESORT, INC., Improperly pled as Mountain Creek, et al., Defendant.
• Court: New Jersey Superior Court

823 A.2d 101

360 N.J. Super. 395

Michael MURRAY, Plaintiff, v. GREAT GORGE RESORT, INC., Improperly pled as Mountain Creek, et al., Defendant.

Superior Court of New Jersey, Law Division, Sussex County.

Decided January 10, 2003.

Todd I. Siegel, Teaneck, for plaintiff (Siegel & Siegel, attorneys).

Christopher J. McCarthy, Somerville, for defendant (Robinson, Burns & McCarthy, attorneys).

GRAVES, J.S.C.

Plaintiff was injured by a fall while snowboarding on a designated ski trail at defendant's ski area. He was a paying customer using the Mountain Creek ski slopes for recreational purposes. The accident occurred when plaintiff went over a rise on the trail and suddenly encountered a large area of dirt and rocks that was devoid of any snow or ice cover. Plaintiff's snowboard came to an abrupt stop and he was thrown forward striking the ground. Defendant, relying on the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -11 (Ski Statute), seeks summary judgment claiming that plaintiff's injuries resulted solely from an inherent risk of snowboarding. The evidentiary materials submitted, however, are not so "one-sided" that defendant is entitled to prevail as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 539-40, 666 A.2d 146 (1995).

There are only a few reported decisions that consider the scope and application of the Ski Statute. None of the reported cases have involved individuals who were snowboarding. The Ski Statute defines "skier" as "a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds, or similar vehicles, and including anyone accompanying the person." N.J.S.A. 5:13-2b. "New Jersey expressly limits the class of persons whose relationship is controlled by the Ski Statute to the `skier' who is on the land of another to practice a winter sport, and the `operator' who accepts payment for the privilege of practicing the sport in question." Brett v. Great Am. Recreation, 144 N.J. 479, 498, 677 A.2d 705 (1996).

Some ski liability laws make specific reference to snowboarding. For example, "skier" has been defined as "any person present in a ski area for the purpose of engaging in the sport of skiing, nordic, freestyle, or other types of ski jumping, and snowboarding." Utah Code Ann. § 78-27-52. Snowboarding is not specifically included in our Ski Statute. Where a statute does not specifically address an issue, the court's "task is to discern the intent of the legislature not only from the terms of the [statute], but also from its structure, history, and purpose." Fiore v. Consolidated Freightways, 140 N.J. 452, 471, 659 A.2d 436 (1995). "Furtherance of legislative purpose is the key to the interpretation of any statute." GE Solid State, Inc. v. Director, Div. of Tax., 132 N.J. 298, 308, 625 A.2d 468 (1993). Our legislature has determined that "the allocation of the risks and costs of skiing are an important matter of public policy." N.J.S.A. 5:13-1a. Consequently, "The purpose of [the Ski Statute] is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers ...." N.J.S.A. 5:13-1b.

In this case, plaintiff paid for the privilege to enjoy snowboarding on defendant's ski slopes and trails and he was exposed to the identical risks as traditional down-hill skiers. It would frustrate, rather than promote, the underlying goals of the Ski Statute to exclude snowboarding from the Ski Statute. Thus, snowboarders are governed by the Ski Statute. Accord Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848 (6th Cir.1999) (snowboarder was "skier" covered by provisions of Michigan's Ski Area Safety Act based on definition of "skiers" utilized by the American National Standards Institute, which includes people using snowboards and handicappers using ski devices); cf. Calhanas v. South Amboy Roller Rink, 292 N.J.Super. 513, 523 n. 2, 679 A.2d 185 (App.Div. 1996) (common sense suggests the legislature did not intend to draw any distinction between individuals wearing rollerblades or in-line skates and standard roller skates when defining "roller skater").

Defendant has not presented any depositions, affidavits, answers to interrogatories, or admissions to contradict or challenge plaintiff's version of the accident. Rather, defendant claims the evidence only establishes that the accident resulted from an inherent risk of snowboarding and that such risks are assumed by skiers and snowboarders as a matter of law. At the time of the accident, plaintiff was an experienced skier and snowboarder. He had received training in snowboarding and snowboard safety in Switzerland and he was employed as a certified snowboard instructor at Okemo Mountain Ski Resort in Vermont during the previous winter season. At his deposition, plaintiff testified that prior to his accident he had skied approximately 200 times and also snowboarded over 200 times. When asked to describe his level of skill on the day of the accident, plaintiff testified: "Expert. Definitely expert."

Plaintiff snowboarded at Mountain Creek on February 4, 1999 and February 5, 1999. On February 4, 1999, the day before the accident, plaintiff observed that the ski trail where the accident took place was being used for mountain biking and he described the trail as "solid dirt from top to bottom." The weather was clear and cold on both days and there was no natural snow on either day.

When plaintiff arrived at the ski area on February 5, 1999, he noticed that the subject trail was posted "open" for snowboarders. He "presumed that the subject trail was covered with artificial snow since it was a bike trail the day before." After purchasing a lift ticket, plaintiff rode a chair lift to the top of the mountain. His description of the accident is as follows:

I exited the chair lift and snowboarded slowly on snow toward the subject trail .... I snowboarded approximately 75 feet and went over a rise at the center of the entrance of the trail. There were no ropes or signs indicating that the trail was closed. There was nothing posted indicating that the entire right half portion of the trail was a mass of exposed dirt and rocks.

As soon as I snowboarded over the rise, there was suddenly no snow whatsoever on the area of the trail I was on. My snowboard traveled over dirt and rocks causing my body to fall forward onto my shoulder.

I did not and could not observe the conditions of dirt and rock on the trail until I was on top of it.

According to plaintiff, the area of dirt and rocks was located within the boundaries of an open trail. He described the area as approximately 30 feet wide and several hundred feet long. Plaintiff testified that the condition of the trail where he fell was not something he would normally expect to encounter and it was not a common and inherent risk of snowboarding.

In his complaint plaintiff alleges that Mountain Creek failed to exercise due care to keep its ski area reasonably safe. In addition, he claims that defendant failed to inspect the trail, failed to post warnings concerning unsafe snowboard conditions, failed to close an unsafe trail, failed to provide adequate man-made snow coverage, failed to mark off a large exposed area of dirt and rocks in the middle of a trail, and allowed a dangerous, hazardous and trap-like condition to exist.

The Ski Statute refers to the assumption of risk defense as follows:

A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others. [N.J.S.A. 5:13-5]

The Ski Statute does not immunize ski area operators from civil liability when injuries result from an inherent risk of the sport of skiing or snowboarding. "[A] skier is not barred from suing an operator based upon assumed risks or for injuries to which he contributed if the operator violated his duties or responsibilities under the bill. In [such a] case, the provisions of the comparative negligence law would apply." Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to Assembly, No. 1650 (Nov. 20, 1978). Thus, even if plaintiff assumed an inherent risk of snowboarding, a jury must still analyze whether defendant violated any of its statutory duties and responsibilities.

The assumption of risk set forth in section 5 shall be a complete bar of suit and shall serve as a complete defense to a suit against an operator by a skier for injuries resulting from the assumed risks, notwithstanding the provisions of P.L.1973, c. 146 (C. 2A:15-5-5.1 et seq.), relating to comparative negligence, unless an operator has violated his duties or responsibilities under this act, in which case the provisions of P.L.1973, c. 146 shall apply. (footnote omitted) (emphasis added). [N.J.S.A. 5:13-6]

"If the factfinder finds that the injuries were proximately caused by the ski operator's violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence." Brett v. Great Am. Recreation, 279 N.J.Super. 306, 315, 652 A.2d 774 (App.Div.), aff'd, 144 N.J. 479, 677 A.2d 705 (1996).

Ski area operators are subject to the following statutory duties and responsibilities:

It shall be the responsibility of the operator to the extent practicable, to:

(1) Establish and post a system generally identifying slopes and trails and

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