Rosen v. LTV Recreational Development, Inc.

• Decision Date: 15 February 1978
• Docket Number: No. 76-1685,76-1685
• Citation: 569 F.2d 1117
• Parties: James P. ROSEN, Plaintiff-Appellee, v. LTV RECREATIONAL DEVELOPMENT, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1117

569 F.2d 1117

James P. ROSEN, Plaintiff-Appellee, v. LTV RECREATIONAL DEVELOPMENT, INC., Defendant-Appellant.

No. 76-1685.

United States Court of Appeals Tenth Circuit.

Submitted Nov. 17, 1977.

Decided Jan. 23, 1978.

Rehearing Denied Feb. 15, 1978.

David L. Kofoed, Denver, Colo., for plaintiff-appellee.

Eugene S. Hames, of Wood, Ris & Hames, Denver, Colo., for defendant-appellant.

Before McWILLIAMS and DOYLE, Circuit Judges, and ROGERS, District Judge. ^*

WILLIAM E. DOYLE, Circuit Judge.

This is a personal injury case which has resulted from plaintiff's colliding with a metal pole while skiing. The plaintiff-skier brought suit against the ski area, LTV Recreational Development, Inc., at Steamboat Springs, Colorado.

The primary questions, that is those which we believe require discussion, are:

A. Is plaintiff precluded, as a matter of law, from recovering because of contributory negligence?

B. Was it error for the court to refuse to instruct the jury on assumption of risk?

C. Is plaintiff-appellee barred from recovery by reason of his having signed rules and regulations for season passes submitted to him by appellant ski area? Did this constitute a consent to free appellant from any and all liability, whether negligent or not negligent?

D. Was the award in the amount of $200,000 so excessive as to require that it be vacated or that there be relief by way of a remittitur?

There are other questions which we regard as less significant or important. These are for the most part trial errors such as whether the court erred in permitting the steel pole which caused the injury to be brought into court, together with its concrete base.

Was it error to give certain instructions such as one on the doctrine of being held to see the danger once it was viewed?

Was it error for the court to refuse to allow in evidence the fact that the plaintiff had been reprimanded for careless skiing on another occasion?

The basic facts are not complex and, for the most part, are not in dispute. The incident occurred on March 1, 1974, at a ski area near Steamboat Springs, Colorado. Trial was held on April 20-22, 1976. The evidence showed that the plaintiff at the time of the trial was 35 years of age, was married and had two daughters, ages 5 and 2. Plaintiff and his family had lived in Steamboat Springs, Colorado for about three years, and he was employed in the real estate business, but in slack seasons he was also employed in the construction business or in other manual labor.

The specific area in which the collision happened was a more or less flat area where the so-called Christie Lift terminated and intersected a run from a higher level known as Heavenly Daze. At this intersection plaintiff-appellee came into contact with one Haffelder, who had just alighted from the chairlift serving the Christie area. The path off the lift terminated onto a rise at the far end of the open area. Haffelder was proceeding toward plaintiff relatively slowly. The evidence showed that plaintiff did not slacken his speed as he approached Haffelder, who was between plaintiff and the pole. The direction which Haffelder turned was to the left, plaintiff's right, whereas plaintiff expected him to turn to his, Haffelder's, right and plaintiff's left. According to plaintiff, this unexpected change of direction on the part of Haffelder made it impossible for him (Rosen) to avoid Haffelder. In an attempt to reduce the seriousness of the impact, he tried to grab hold of Haffelder and thus avoid knocking him over. Haffelder, however, avoided the grab and the result was that Rosen and Haffelder collided and Rosen was catapulted into a metal pole which was located in an open area. It was this pole that caused the serious injuries to the plaintiff, including multiple fractures of the large bone (tibia) in his leg. From this he has permanent injuries. The jury awarded damages in the sum of $200,000.

It is alleged that appellant's negligence consisted of maintaining this steel pole set in concrete at the place where it was. It is contended that this created a risk of injury of the very kind that occurred. Defendant maintains, however, that it was not a hazard because descending skiers could generally avoid it by simply turning.

I.

DOES THE FACT THAT APPELLEE COLLIDED WITH A THIRD PERSON

BEFORE COLLIDING WITH APPELLANT'S STEEL POLE SERVE

TO RENDER APPELLANT'S NEGLIGENCE, IF

ANY, A REMOTE FACTOR, WHEREBY

IT CANNOT BE HELD LIABLE?

Complaint is made that the so-called "second impact theory" was submitted to the jury. This is based upon a contention and argument that the presence of the pole is not sufficient notice to the operator of the ski area to render him liable for an accident which was unlikely since it resulted from a collision with the pole only after a collision with a skier; that because of this sequence there could not be a violation of the duty to maintain a ski area in a reasonably safe condition.

Counsel for defendant-appellant characterizes his contention as the "second impact theory." He states that this is the "only theory upon which plaintiff could possibly recover;" that it has not been adopted in Colorado; and that it is not likely to be. We must disagree with appellant's classification for the readily apparent reason that it is so much like a straw man approach. Counsel creates the straw man and then knocks it down. A more likely problem-solving method is that of legal causation. This requires consideration as to whether the conduct of the defendant-appellant created a risk for which it is legally responsible to plaintiff or, specifically, whether the collision of plaintiff with Mr. Haffelder constituted an intervening legal cause which superseded any cause attributable to appellee. This is the way that the trial court considered the case, and we agree with its analysis. To go forward on the "second impact theory" is to use a narrow category which does not give any promise of a correct result.

The steel signpost constituted a passive condition rather than an active force, but this factor is not significant. Negligently maintaining a condition can constitute negligence as readily as active conduct. Professor Prosser in his work on Torts (4th Ed.), at p. 18, states that although in the past such a distinction had some recognition, it no longer has acceptance.

The foreseeability test adopted by the trial court for determining whether the appellant was liable is set forth in its charge to the jury as follows:

The occupant of the premises has a duty to use reasonable care to maintain his premises in a reasonably safe condition in view of the probability or foreseeability if any of injury to others, and in determining whether or not the defendant LTV Recreational Development, Inc. as an occupant of the premises acted as a reasonably prudent person in maintaining the premises in a reasonably safe condition considering the probability or foreseeability if any of injury to others, you should consider, but you are not limited to the following: One, the purpose for which the plaintiff James Rosen was on the premises; two, whether the defendant reasonably could have foreseen that persons such as the plaintiff would or might come upon the premises for the same or similar purpose; three, whether there was a condition on the premises which created an unreasonable risk of injury to persons such as the plaintiff and which they could not reasonably be expected to discover for themselves; now, if there was such condition, did the defendant know or should the defendant reasonably have known of its existence; finally, if there was such a condition which the defendant knew or reasonably should have known of, did the defendant use reasonable care or give warning of it?

The foregoing instruction requires that plaintiff prove that the steel signpost was an independent hazard capable of producing liability regardless of a collision between skiers and the resultant impact with the post. The burden thus imposed on plaintiff was to prove that the condition created by defendant-appellant was reasonably capable of producing an injury to the plaintiff.

We have considered the two authorities relied on by appellant, Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.), cert. denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966), ¹ and Frericks v. General Motors Corp., 20 Md.App. 518, 317 A.2d 494 (1974), vacated and remanded, 274 Md. 288, 336 A.2d 118 (1975), which were both decided in the context of "second impact." Both denied recovery on the basis that automobile manufacturers are not under a duty to design automobiles so as to protect occupants from serious injuries resulting from collisions. The facts differ substantially from the facts at bar and render it difficult, if not impossible, to relate them to this case by drawing parallels from them.

We perceive no error in the rejection by the trial court of the theory advanced by appellant and in defining the case on the more fundamental basis of foreseeability that injury would result from having the steel pole in the midst of the intersection.

II.

DID THE TRIAL COURT ERR IN FAILING TO INSTRUCT THE JURY ON

THE DOCTRINE OF ASSUMPTION OF RISK?

In rejecting the request of counsel for appellant for an instruction to the jury on voluntary assumption of risk, the court stated its opinion that assumption of risk is no longer applicable in Colorado in view of the comparative negligence statute.

The Supreme Court of Colorado has, even prior to the adoption of the comparative negligence statute, treated assumption of risk as a species of contributory negligence. See Boulder Valley Coal Co. v. Jernberg, 118 Colo. 486, 197 P.2d 155 (1948); Wilson v. Hill, 103 Colo. 409, 86 P.2d 1084 (1939); Carpenters Local 55 v. Salter, 114 Colo. 513, 167 P.2d 954 (1946). It follows that where they do not expound independent defenses, it is repetitious to submit both to the jury. The Colorado Court of Appeals...