Phillips v. Monarch Recreation Corp.

• Decision Date: 12 May 1983
• Docket Number: No. 81CA0731,81CA0731
• Citation: 668 P.2d 982
• Parties: John PHILLIPS, Plaintiff-Appellee, v. MONARCH RECREATION CORPORATION, a Nebraska corporation, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 982

668 P.2d 982

John PHILLIPS, Plaintiff-Appellee, v. MONARCH RECREATION CORPORATION, a Nebraska corporation Defendant-Appellant.

No. 81CA0731.

Colorado Court of Appeals Div. I.

May 12, 1983.

Rehearing Denied June 2, 1983.

Williams, Trine, Greenstein & Griffith, P.C., Bruce O. Downsbrough, William A. Trine, Boulder, for plaintiff-appellee.

Wood, Ris & Hames, P.C., Eugene S. Hames, Denver, for defendant-appellant.

STERNBERG, Judge.

John Phillips sued the Monarch Recreation Corporation for injuries and damages he sustained when he collided with trail grooming equipment at Monarch's ski area. The jury returned a verdict for Phillips and Monarch appeals. We affirm.

After skiing down a run at Monarch known as Ray's Romp, Phillips collided with a trail grooming machine called a sno-cat as he came around a blind corner at the bottom of the run. He testified that he was unable to see the sno-cat until several seconds before the collision and that he attempted to tighten his turn when he saw it but was unable to do so in such a short period of time.

The sno-cat is similar in appearance to a very large tractor and has snow grooming equipment extending fifteen feet behind it. On the day of the accident it was being used to groom a run known as Ajax. Because Ajax was too steep to drive back up, the driver of the sno-cat was using a trail called the Catwalk (the one Phillips attempted to turn on to) to get back up to the top of Ajax. The Catwalk is a narrow, flat trail that connects several runs and is used by skiers to continue from run to run down the mountain to the ski lifts. There were no signs posted to warn skiers that the sno-cat was on the trail.

Phillips testified that he was skiing slowly on Ray's Romp, making wide sweeping turns, and estimated his speed at between 20 and 30 miles per hour. Although there were no eyewitnesses to the accident, a ski patrolman named Morehead, who was skiing down a run separated from Ray's Romp by some trees, testified that he saw Phillips at the bottom of Ray's Romp where the two runs converge, and that Phillips was skiing in a tuck position at a high rate of speed. Several other witnesses who were familiar with Phillips' skiing style testified that he tended to ski beyond his ability and was not always in control. In the opinion of the treating physician, Phillips' injuries were consistent with a speed of 5 to 10 m.p.h.

Evidence was introduced of Phillips' medical expenses and of permanent injury to his knees, as well as evidence of his need for continual medical attention as a result of the injuries.

A number of jury instructions were given relating to sections of the Ski Safety Act of 1979, § 33-44-101 et seq., C.R.S.1973 (1982 Cum.Supp.). These included an instruction that violation of any requirement of the act which causes injury to any person constitutes negligence by virtue of § 33-44-104, C.R.S.1973 (1982 Cum.Supp.); an instruction that whenever maintenance equipment is being employed to maintain or groom any ski slope or trail while such trail is open to the public, a conspicuous notice to that effect shall be placed at or near the top of that slope or trail, § 33-44-108, C.R.S.1973 (1982 Cum.Supp.); and one that each skier has the responsibility for knowing the range of his ability, maintaining control, avoiding collision with persons and objects below him, and staying clear of snow grooming equipment and other equipment on the slopes or trails, § 33-44-109, C.R.S.1973 (1982 Cum.Supp.).

Also included was an instruction on the sudden emergency doctrine. Based on C.J.I. 9:10 (2d ed. 1980), it stated that "a person who, through no fault of his own, is placed in a sudden emergency, is not chargeable with negligence if he exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances."

The jury was given three verdict forms. The trial court instructed it to complete the first form if it found either that Phillips did not sustain injuries or the absence of causative negligence on the part of Monarch. If it found affirmatively on those issues, the jury was instructed to determine whether Phillips was negligent and whether his negligence contributed to his injury. If the answer to either of those questions was in the negative, i.e., that Phillips' injuries were solely attributable to Monarch's negligence, the court instructed the jury to complete the second form, which was a verdict for Phillips and an amount of damages. If the answer to all the questions was in the affirmative, i.e., that Monarch was negligent but that Phillips' negligence also contributed to his injuries, the jury was to complete the last form, stating the total amount of damages and apportioning the negligence between the parties as a percentage of 100.

The jury completed the second form, finding Monarch responsible for Phillips' injuries, and finding that Phillips was negligent but that his negligence did not contribute to his injuries. Contrary to the court's instructions, the jury placed a 95% figure next to its finding of Monarch's negligence, and a 5% figure next to its finding of Phillips' negligence.

Five months after the trial, Monarch submitted a motion for a new trial based on newly discovered evidence with the affidavits of two persons who were skiing down Ray's Romp while Phillips was on that run. In the affidavits, the affiants indicate that Phillips skied past them when they were about two-thirds of the way down the run and that he was skiing straight down the hill at a high rate of speed. They did not see the accident. The trial court denied the motion for a new trial because it considered the evidence to be merely cumulative to testimony already given.

I.

Monarch argues that the jury should not have been instructed on the statutory duty to post warning signs when snow grooming equipment is in use because the sno-cat was not grooming when the accident occurred. We disagree.

The threshold determination of admissibility of a statute is one of relevancy. Sego v. Mains, 41 Colo.App. 1, 578 P.2d 1069 (1978). When the General Assembly has expressly designated the violation of a statute to be negligence, the statute is relevant if: (1) there is evidence that the alleged violation was the proximate cause of the injury, Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167 (1961); (2) the party injured is a member of the class of persons to be protected by the statute, Hamilton v. Gravinsky, 28 Colo.App. 408, 474 P.2d 185 (1970); and (3) the statute can be construed to apply to the facts at issue. Restatement (Second) of Torts § 285 (1976).

On its face the Ski Safety Act reveals that its purpose is to require warnings to skiers that their path may be obstructed by heavy machinery. The sno-cat involved carried the same equipment and was being operated in the same manner as if it were grooming the Catwalk. The hazard of colliding with equipment on a blind corner was the same whether or not the sno-cat was grooming. Indeed, the sno-cat would have been "grooming" had the Catwalk not been groomed earlier that morning.

The rule of strict construction is relaxed in the interpretation of an act designed to declare and enforce a principle of public policy. Rinnander v. Denver Milk Producers, Inc., 114 Colo. 506, 166 P.2d 984 (1946). Although the act only requires a sign when equipment is "grooming and maintaining" a ski slope, we hold that a warning sign must also be posted when a sno-cat is present on the ski slopes for those purposes but is not actively "grooming" in that particular location.

II.

Because Phillips did not show that he would have pursued a different course of conduct had the sudden emergency left him time to reflect, Monarch argues that it was error to instruct the jury on the sudden emergency doctrine.

It is error to give an instruction when it is not supported by the evidence. Converse v. Zinke, 635 P.2d 882 (Colo.1981). Early case law indicates that when a party's theory is that there was no time to reflect and no choice of conduct involved, a sudden emergency instruction should not be given. Iacino v. Brown, 121 Colo. 450, 217 P.2d 266 (1950). But more recent cases indicate that the question whether there is a choice involved or time to reflect is a jury issue and that the instruction is merely an evidentiary guide by which the trier of fact may apply the prudent man rule. Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972); Cudney v. Moore, 163 Colo. 30, 428 P.2d 81 (1967).

Here, because of the finding that Phillips was negligent, the jury either found the instruction not to be applicable to the facts, or it applied the instruction and found that Phillips was negligent. Thus, giving the instruction was not reversible error. See Chart v....