USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 95-2273
JOEL W. SWENSON,
Plaintiff, Appellant,
v.
SUNDAY RIVER SKIWAY CORPORATION,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Graydon G. Stevens, with whom Kelly, Remmel & Zimmerman, Gary D.
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McQuesten, and Valsangiacomo, DeTora & McQuesten, P.C., were on
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briefs, for appellant.
Elizabeth J. Wyman, with whom Evan M. Hansen and Preti, Flaherty,
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Beliveau & Pachios, were on brief, for appellee.
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March 19, 1996
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LYNCH, Circuit Judge. Maine has chosen to exempt
LYNCH, Circuit Judge.
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ski areas from liability for actions for injuries resulting
from risks "inherent" in skiing. The statute, 26 M.R.S.A.
488 (West 1988), does, however, permit actions for injuries
actually caused by the negligent operation or maintenance of
the ski area. The question presented is whether a skier who
was injured when he fell negotiating moguls not visible from
a "breakover"1 just above suffered injury as a result of a
risk inherent in skiing or from the negligent operation or
maintenance of the ski area. We hold that this case involves
the inherent risks of skiing, thus is within the immunity
Maine has chosen to afford, and affirm the entry of summary
judgment for the Sunday River Skiway Corporation.
A skier of more than 20 years experience, Joel W.
Swenson skied down expert trails at Sunday River on March 24,
1993 before skiing the "3-D," an intermediate trail. He
started down the upper portion of 3-D, traversing it at giant
slalom (GS) speed. The trail had been groomed smooth that
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1. "Moguls" are bumps in the snow surface of a ski trail.
They are created by skiers carving out their turns. It is a
common practice for ski areas to leave all or portions of a
trail ungroomed so as to retain moguls. A "breakover" is the
convergence and changeover of two or more trails of differing
slope.
Our definitions are from the district court's opinion.
We realize, however, that with changing times and
vocabularies (especially in the increasingly technology
oriented world of downhill skiing), the meaning of words such
as "mogul" may change. For example, The Real Skier's
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Dictionary provides (humorously) the following "archaic"
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definition of the term "moguls": "bumps appearing on the
slope before the days of grooming machines." Morten Lund,
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The Real Skier's Dictionary (1983) (emphasis added).
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far. As he approached the crest of the breakover at the
intersection of 3-D and the Last Mile Trail, Swenson slowed
slightly. What was beyond the breakover was not visible.
What was beyond the breakover were moguls across the entire
width of the trail. Swenson, skiing too fast to negotiate
the moguls, fell and was injured. There is no dispute that
the moguls had formed on the trail naturally, as a result of
normal skier traffic. There is also no dispute that Sunday
River, had it so desired, could have groomed the entire
length of the trail smooth. However, Sunday River, which had
designed 3-D, as the name implies, to be a mogul trail,
designedly decided to groom only the upper portion of 3-D and
not to remove the mogul field from the bottom portion of the
trail.
Because the appeal is from entry of summary
judgment, our review is de novo. Commonwealth of Mass. v.
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Blackstone Valley Elec. Co., 67 F.3d 981, 985 (1st Cir.
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1995). We regard the record and draw all inferences
favorably to Swenson. Id.
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The legislative policy behind the Maine Skiers' and
Tramway Passengers' Responsibilities Act is expressed in the
language of the statute in effect at the relevant time:
It is hereby recognized that skiing as a
recreational sport and the use of
passenger tramways associated therewith
may be hazardous to skiers or passengers,
regardless of all feasible safety
measures which can be taken. Therefore,
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each skier shall have the sole
responsibility for knowing the range of
his own ability to negotiate any slope or
ski trail, and it shall be the duty of
each skier to conduct himself within the
limits of his own 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. Except
as otherwise specifically provided in
this subchapter, each skier who
participates in the sport of skiing shall
be deemed to have assumed the risk of the
dangers inherent in the sport and assumed
the legal responsibility for any injury
to his person or property arising out of
his participation in the sport of skiing,
unless the injury or death was actually
caused by the negligent operation or
maintenance of the ski area by the ski
area operator, its agents or employees.
Except as provided in this section, the
responsibility for collisions by any
skier while actually skiing, with any
person or object, shall be solely that of
the skier or skiers involved in [the]
collision and not that of the ski area
operator. This section shall not prevent
the maintenance of an action against a
ski area operator for the negligent
design, construction, operation or
maintenance of a tramway.
26 M.R.S.A. 488 (West 1988).
Against this framework, Swenson makes two claims.
He says that Sunday River negligently maintained and groomed
3-D in such a manner as to create a mogul field immediately
below a breakover where it was not visible to skiers
approaching it from above at expected and appropriate speeds.
He also argues that Sunday River negligently failed to mark
or warn of this hazard.
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Recognizing that negligent design of a trail is
immunized from liability under the statute2 as interpreted
by this court in Finnern v. Sunday River Skiway Corp., 984
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F.2d 530, 534 (1st Cir. 1993), the parties have framed the
issue as whether the presence of an ungroomed mogul field
below a blind breakover gives rise to a design issue as
opposed to an issue of operation or maintenance. To some
extent, on particular facts, the answer to whether a feature
of a ski trail is a design feature or one of operation and
maintenance may be a matter of degree. But we think it
sufficiently clear in this case that deciding to retain and
not groom away moguls on a trail was a design decision that
Swenson's claim is precluded as a matter of law.
Swenson argues that the term "design" should be
restricted to those aspects of a trail which are immutable or
permanent, such as degree of curvature or incline. He argues
that there was nothing natural, inseparable or necessary
about the moguls being just below the breakover and thus
their presence there was not an inherent risk of skiing.
While the sudden appearance of moguls on a trail might be
natural, Swenson argues that these moguls resulted from
Sunday River's decision not to groom and that this is a
legally viable distinction. The very fact that some choice
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2. The statute expressly permits suits arising out of
negligent design of a tramway but not of a ski trail. This
suit does not involve a tramway accident.
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was made, he says, entitles him to get to a jury. We think
that the argument misperceives the legislative intent. The
trail on which he was injured was designed to be a mogul
trail and the location of the moguls, even if shifting,
cannot be separated from the design decision made by Sunday
River. Moguls are inherently risky for skiers -- that may be
precisely why skiers are lured by mogul trails. Moguls are
an inseparable characteristic of the 3-D trail and an
inherent risk of skiing. Cf. Knight v. Jewett, 11 Cal. Rptr.
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2d 2, 14 (Cal. 1992) (in banc) (risk posed by moguls is an
inseparable part of the sport); O'Donoghue v. Bear Mountain
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Ski Resort, 35 Cal. Rptr. 2d 467, 469 (Cal. Ct. App. 1994)
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(same).
Swenson's argument that Sunday River had a duty to
warn of the existence of moguls below a breakover must be
weighed in light of the statute's express admonition that "it
[is] the duty of each skier to conduct himself within the
limits of his own ability, to maintain control of his
speed . . . at all times while skiing . . . and to refrain
from acting in a manner which may cause or contribute to the
injury of himself or others." 26 M.R.S.A. 488 (West 1988).
The convergence of two trails at a breakover with no forward
visibility requires a skier to adjust his or her speed
appropriately. While skiing at GS speeds on the upper,
mogul-free portion of the trail, where there was clear
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visibility, may have been appropriate, it is undisputed that
the speed at which Swenson skied below the breakover was
inappropriate. There was, at the very least, a risk of
another skier on the other side of the breakover, a risk this
court described as "inherent" in Finnern, 984 F.2d at 537.
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If Swenson could be presumed by law to have assumed that
risk, there seems no principled basis for saying that he
could not be presumed to have assumed the risk that other
unextraordinary unseen hazards in the nature of moguls might
be present beyond the crest.
Swenson's own expert testified that Swenson's GS
speed and style made it impossible for him to handle the
mogul field he encountered and that even an expert skier
could not have negotiated the mogul field at Swenson's GS
speed. Swenson testified that had he been skiing slower, he
could have handled the moguls. The breakover itself,
combined with the lack of visibility, put Swenson on notice
that there might be moguls (or other comparable hazards) --
the presence of which clearly are inherent risks of skiing --
just below. The breakover provided a natural warning of
risks below that required Swenson to slow. The statute
placed the responsibility of guarding against those risks on
Swenson. Under the circumstances, there was no duty to warn.
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Affirmed.
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