Rantapaa v. Black Hills Chair Lift Co.

• Decision Date: 22 August 2001
• Docket Number: No. 21718.,21718.
• Citation: 633 N.W.2d 196,2001 SD 111
• Parties: Rocky D. RANTAPAA and Margie B. Rantapaa, Individually and as Guardian Ad Litem of Matthew Rantapaa, a minor, Plaintiffs and Appellants, v. BLACK HILLS CHAIR LIFT CO., Plaintiff d/b/a Terry Peak Ski Area, Defendant, Third Party Plaintiff and Appellee, v. Curtis Allen, Third-Party Defendant and Appellee.
• Court: South Dakota Supreme Court

633 N.W.2d 196

2001 SD 111

Rocky D. RANTAPAA and Margie B. Rantapaa, Individually and as Guardian Ad Litem of Matthew Rantapaa, a minor, Plaintiffs and Appellants, v. BLACK HILLS CHAIR LIFT CO., Plaintiff d/b/a Terry Peak Ski Area, Defendant, Third Party Plaintiff and Appellee, v. Curtis Allen, Third-Party Defendant and Appellee.

No. 21718.

Supreme Court of South Dakota.

Argued May 30, 2001.

Decided August 22, 2001.

Rehearing Denied September 28, 2001.

Kennith L. Gosch of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, SD, Gregory A. Eiesland of Johnson, Eiesland, Huffman, & Clayborne Law Firm, Rapid City, SD, Attorneys for plaintiffs and appellants.

Jay C. Shultz and Steven J. Oberg of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, Attorneys for defendant and appellee Black Hills Chair Lift Co., d/b/a Terry Peak Ski Area.

J. Crisman Palmer of Gunderson, Palmer, Goodsell & Nelson, Rapid City, SD, Attorneys for appellee, Curtis Allen.

CALDWELL, Circuit Judge.

[¶ 1.] Rocky and Margie Rantapaa (Rantapaa), guardians ad litem for Matthew Rantapaa (Matthew), appeal a verdict in favor of the Black Hills Chair Lift Company (Black Hills Chair) in their action for negligent design and operation of the Terry Peak Ski Area. We reverse and remand.

FACTS

[¶ 2.] Black Hills Chair owns and operates the Terry Peak Ski Area which is open to the public for a fee.¹ On January 11, 1999, Matthew, an eleven-year old boy on a school outing, was injured in a collision with another downhill snow skier, Curtis Allen (Allen). The accident occurred at the Terry Peak Ski Area. Matthew and Allen collided where two separate ski runs, Surprize² and Snowstorm, meet. The ski area is designed so that two beginner runs, Snowstorm and Little Phil, and two intermediate runs, Surprize and Black Moon, empty into a small area just above an advanced or expert run called the Falls.

[¶ 3.] Dense pine trees separate Surprize and Snowstorm. Skiers that head down these two runs are not able to see one another until after they meet at the bottom of the runs. An expert skier who wishes to ski the Falls must cross over the bottom of Surprize. Also, a beginning skier skiing down Surprize must cross over the bottom of Snowstorm to avoid going down the Falls. Several signs on the Snowstorm run stating "easiest way down" direct novice skiers to an egress road that leads to the chair lift. The "easiest way down" and the Falls are the only ways to get to the chair lift from these two runs.

[¶ 4.] On the day of the accident, Matthew was skiing Terry Peak for the first time. Matthew was an inexperienced skier, only skiing four to five times in the past at a different ski resort. Matthew skied down Surprize. At the same time, Allen, an expert skier, skied down Snowstorm, heading for the Falls. Both skiers were skiing very close to the tree line that separates the two runs.

[¶ 5.] In order for Matthew to get to the trail marked "easiest way down," he had to cross the area where Snowstorm and Surprize converge. Due to the dense tree line, Matthew could not see Allen coming down Snowstorm. Just before impact, Matthew turned left into Snowstorm and Allen, traveling at a high rate of speed and in a tucked position, collided with Matthew. Allen hit Matthew with such force that Matthew's skull was fractured.³ Matthew was air-evacuated to the University of Minnesota Hospital for emergency surgery on his brain and skull. Matthew suffered permanent brain injury.

[¶ 6.] Rantapaa⁴ sued Black Hills Chair alleging negligence in the design, maintenance or supervision of Terry Peak Ski Area.⁵ Regarding the issue of supervision, the testimony at trial revealed that ski patrollers were in the area and responded almost immediately to the accident. Matthew's school also provided chaperones although it is not clear whether Matthew was near his chaperone at the time of the accident.

[¶ 7.] On the claim of negligent design, Rantapaa claims that professional engineers did not design Terry Peak. The owners of Black Hills Chair designed and constructed the ski runs at Terry Peak. Black Hills Chair did not hire an engineer to design the runs and has not had an engineer check the design of the runs for safety.

[¶ 8.] Terry Peak's General Manager, Tom Marsing, testified that the advent of professional engineering in ski area design is a relatively recent phenomenon. Marsing also testified that having different runs empty into a common area near the bottom of a ski hill is a necessary practice and, in his opinion, does not present a problem.

[¶ 9.] To the contrary, Rantapaa maintains that the design of the ski runs encourages expert skiers to cross over the beginner's ski area. Rantapaa claims that there is inadequate visibility for skiers at the convergence of Snowstorm and Surprize due to the dense tree line that separates the two runs. Rantapaa contends that neither Matthew nor Allen could see each other until immediately before impact because of the dense tree line. Rantapaa offered evidence that a "wing gate" is one acceptable method in the skiing industry to warn skiers of dangers on a slope. Rantapaa alleges that Black Hills Chair had a duty to use a wing gate to warn Matthew of the blind intersection.

[¶ 10.] Following presentation of the evidence, the trial court instructed the jury that it was Rantapaa's burden to prove Black Hills Chair was negligent in its design of the slopes; its failure to warn of the danger at intersecting trails; or its failure to supervise slope intersections. The trial court defined negligence for the jury. The trial court also gave several other instructions. Specifically, the trial court instructed the jury on a Lawrence County ordinance called the Skier Responsibility Ordinance⁶ which exempts Black Hills Chair from liability resulting in injuries from any of the inherent dangers and risks of skiing. Rantapaa's counsel objected to this instruction on the grounds that it conflicts with South Dakota's statutory and common law of negligence. The trial court, however, overruled the objection.

[¶ 11.] At the conclusion of the case, the jury returned a unanimous special verdict in favor of Black Hills Chair. The jury specifically found that Black Hills Chair was not negligent. The jury did not reach any of the remaining issues.

[¶ 12.] Rantapaa appeals the submission of Instruction 17 to the jury. He claims that Instruction 17, which is a portion of the Skier Responsibility Ordinance, is invalid because it attempts to change the general laws of South Dakota.

STANDARD OF REVIEW

[¶ 13.] Under the applicable standard of review, we construe jury instructions as a whole to determine if they establish a full and correct statement of the law. See Dunes Hospitality v. Country Kitchen Intern., 2001 SD 36, ¶ 7, 623 N.W.2d 484, 487; State v. Frazier, 2001 SD 19, ¶ 35, 622 N.W.2d 246, 259; Veeder v. Kennedy, 1999 SD 23, ¶ 32, 589 N.W.2d 610, 618; Davis v. Knippling, 1998 SD 31, ¶ 4, 576 N.W.2d 525, 526. Conflicting, misleading or confusing instructions may create reversible error. See Veeder, 1999 SD 23 at ¶ 32, 589 N.W.2d at 618. An appellant must show not only that a particular instruction was erroneous, but also that it was prejudicial, meaning the jury probably would have returned a different verdict if the faulty instruction had not been given. See Frazier, 2001 SD 19 at ¶ 35, 622 N.W.2d at 259.

ISSUE

[¶ 14.] Whether the trial court erred in giving Instruction 17 which is a portion of the Lawrence County Skier Responsibility Ordinance?

[¶ 15.] Rantapaa argues that the trial court erred in submitting Instruction 17 to the jury and that he was prejudiced. Jury Instruction 17 provides as follows:

An ordinance in Lawrence County⁷ ... provides in part:

A skier shall:

(1) Assume the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing, except that a skier is not precluded under this Ordinance from suing another skier for any injury to person or property resulting from such other skiers' acts or omissions ...

"Inherent dangers and risks of skiing" mean those dangers or conditions which are an integral part of the sport of downhill skiing, including changing weather conditions; snow conditions as they exist or may change such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, stream beds, and trees, or other natural objects and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modification; collisions with other skiers; and the failure of skiers to ski within their own abilities.

(2) Ski within the limits of individual skill and expertise, so as to avoid injury to self and others.

(3) Maintain a reasonable control of speed and direction, and maintain a proper lookout at all times, so as to prevent injury to self and others.

If you find that the collision between Matthew and [] Allen occurred as the result of an "inherent danger and risk of skiing," recovery cannot be had herein and your verdict must be for Black Hills Chair Lift Company.

This ordinance sets the standard of care of a reasonable person. If you find [] Allen violated it, such violation is negligence. (footnote added).

Although the trial court instructed the jury on a portion of the Lawrence County Skier Responsibility Ordinance, the trial court immediately gave two additional instructions. Instruction 18 provides:

Although a ski area has no duty to protect against risks inherent in the sport, it does owe a duty not to increase risks of activity beyond risks inherent

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