Seewaldt v. Mount Snow, Ltd., 86-202

• Decision Date: 05 August 1988
• Docket Number: No. 86-202,86-202
• Citation: 552 A.2d 1201,150 Vt. 238
• Parties: Catherine SEEWALDT v. MOUNT SNOW, LTD.
• Court: Vermont Supreme Court

Page 1201

552 A.2d 1201

150 Vt. 238

Catherine SEEWALDT v. MOUNT SNOW, LTD.

No. 86-202.

Supreme Court of Vermont.

Aug. 5, 1988.

Dorsch and Hertz, Brattleboro, for plaintiff-appellant.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellee.

Before ALLEN, C.J., PECK and MAHADY, JJ., and BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

PECK, Justice.

Plaintiff, Catherine Seewaldt, appeals an order of the Windham Superior Court granting defendant's motion for a directed verdict. V.R.C.P. 50(a). We affirm.

In January of 1983, plaintiff attended a ski week at defendant's ski area in Dover, Vermont. On her second day at the ski area, plaintiff slipped while walking down an unimproved path leading from the base lodge to a parking area. She tumbled down the hill and struck her head against a rock at the bottom of the slope, breaking her shoulder and jaw.

Plaintiff brought suit against defendant, seeking compensation for the injuries she suffered in her fall. After plaintiff presented all the evidence she intended to offer concerning defendant's liability, the court ruled on defendant's motion for a directed verdict. The trial court granted the motion in favor of defendant and this appeal followed.

Plaintiff makes no claim that defendant was in any way responsible for the fall itself. Rather, she argues that defendant negligently failed to clear the rocks from the bottom of the hill, thereby creating an unreasonable hazard. In granting defendant's motion for a directed verdict, the trial court determined that plaintiff produced no evidence that reasonably tended to support her claim that defendant was negligent with regard to the placement of rocks at the bottom of the hill. It concluded, therefore, that the matter was not proper for resolution by a jury. See Macey v. James, 139 Vt. 270, 271, 427 A.2d 803, 804 (1981).

When reviewing the trial court's grant of a directed verdict, this Court must view the evidence in the light most favorable to plaintiff and exclude all modifying evidence. Behn v. Northeast Appraisal Co., 145 Vt. 101, 104, 483 A.2d 604, 606 (1984). A motion for a directed verdict cannot be granted where there is any evidence fairly and reasonably tending to justify a verdict in the nonmoving party's favor. See Beaucage v. Russell, 127 Vt. 58, 60, 238 A.2d 631, 633 (1968); Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 312, 449 A.2d 900, 902 (1982). Where a plaintiff has failed to present evidence on an essential element of her case, however, a verdict should be directed for the defense. Langdon-Davies v. Stalbird, 122 Vt. 56, 57-58, 163 A.2d 873, 875 (1960).

In this case, plaintiff failed to present evidence of one of the elements necessary to create a prima facie case: that defendant breached its duty of care. See Morris v. American Motors Corp., 142 Vt. 566, 572, 459 A.2d 968, 971 (1982). Nothing in the record suggests that the path, which plaintiff and others elected to use from time to time as a shortcut to the parking area, was itself dangerous and unsafe to a degree that defendant had reason to anticipate that a person using it might slip and fall. In the absence of such a showing, plaintiff's situation was no different than that which confronts a business invitee who, through no fault of the property owner, falls and hurts herself on a parking area, walkway or driveway which has been paved with a hard surface or bordered with decorative rocks. Unless there is some foreseeably dangerous condition which is known or should be known by the owner but is not known to the invitee, evidence of rocks or the use of a hard paving material, either of which might cause injury in the event of a fall, is, without more, insufficient to establish a prima facie case of negligence and withstand a motion for a directed verdict. Cf. Garafano v. Neshobe Beach Club, Inc., 126 Vt. 566, 572, 238 A.2d 70, 75 (1967).

Consequently, we hold that the trial court properly directed the verdict in favor of defendant. See Langdon-Davies, 122 Vt. at 58, 163 A.2d at 875; Peterson v. Post, 119 Vt. 445, 450-51, 128 A.2d 668, 672 (1957).

AFFIRMED.

MAHADY, Justice, dissenting.

I do not agree with the majority that the trial court properly directed a verdict in favor of defendant in this case. Therefore, I respectfully dissent.

"If there was any evidence reasonably supporting plaintiff's claim, the case should have gone to the jury and a directed verdict [is] improper." Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 312, 449 A.2d 900, 902 (1982). Also, plaintiff is to be given the benefit of all reasonable doubts and inferences. Cf. Berlin Development Associates v. Department of Social Welfare, 142 Vt. 107, 111, 453 A.2d 397, 399 (1982) (when deciding a summary judgment motion, inferences and...