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Merrill v. Sugarloaf Mountain
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  	1997 ME 180
Docket:  	Pen-96-851
Submitted
on Briefs:	June 26, 1997 
Decided:	August 7, 1997

Panel:	  WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.




JAMES MERRILL v. SUGARLOAF MOUNTAIN CORPORATION


LIPEZ, J.

	[¶1]  James Merrill appeals from the judgment entered in the
Superior Court (Penobscot County, Kravchuk, J.) in favor of Sugarloaf
Mountain Corporation pursuant to a motion for a summary judgment. 
Merrill contends that the court erred when it concluded as a matter of law
that 26 M.R.S.A. § 488 (1988){1} protects Sugarloaf from liability for injuries
Merrill suffered when he skied into a drainage ditch on a trail at Sugarloaf. 
We agree and vacate the judgment.  
I.
	[¶2]  On December 26, 1993, Merrill and three friends, Jason
LaGrange, Scott Hunt, and Gary Martin, skied at Sugarloaf.  After lunch they
were skiing on the Skidder trail, a trail marked as an expert trail at the top
and as an intermediate trail at the bottom.  They considered themselves to
be expert skiers.  As the group was skiing on the lower, intermediate
section of the trail they approached an intersection with another trail and
saw two crossed bamboo poles about 15 to 20 feet from the right tree line,
and about 50 feet from the left tree line on the Skidder trail.  According to
the skiers, the trail was covered with snow from tree line to tree line. 
Martin stated that the trail looked groomed on both sides of the bamboo
poles, and LaGrange agreed that it looked like "you could go to the right and
left of [the] crossed poles[.]"  Hunt stated that "both sides [of the trail]
appeared to be safe for skiing."  According to the ski patrol person on duty,
however, only the snow to the left of the bamboo poles had been groomed
that day, and the groomed edge to the left was visible to skiers.{2}  LaGrange
was skiing first, with the other skiers behind him, and he skied to the left of
the bamboo.  Merrill skied to the right of the bamboo poles and fell,
breaking his ankle, when he hit a depression in the snow caused by a "water
bar," a drainage ditch in the trail that extended from the crossed bamboo to
the right tree line.  According to Merrill, he never saw the ditch, and
LaGrange stated that the ditch was not visible until one was "right up beside
the poles."  
	[¶3]  Merrill alleged that Sugarloaf was negligent and liable for his
injuries.  Sugarloaf moved for a summary judgment, contending that
Merrill's fall was the result of an inherent risk in skiing and that it was not
caused by Sugarloaf's negligent operation and maintenance of the ski area. 
The court agreed and granted a summary judgment.  This appeal followed.
II.
	[¶4] "We review the entry of a summary judgment for errors of law,
viewing the evidence in the light most favorable to the party against whom
the judgment was entered."  Maynard v. Commissioner of Corrections, 681
A.2d 19, 23 (Me. 1996).  We undertake an independent review of the record
to determine if there is a genuine issue of material fact and if the moving
party was entitled to a judgment as a matter of law.  First Citizens Bank v.
M.R. Doody, Inc. 669 A.2d 743, 744 (Me. 1995).  "A summary judgment is
an extreme remedy and should be granted in favor of a defendant only when
the facts before the court so conclusively preclude recovery by the plaintiff
that a judgment in favor of the defendant is the only possible result as a
matter of law."  Binette v. Dyer Library Ass'n, 688 A.2d 898, 901 (Me. 1996).
	[¶5]  26 M.R.S.A. § 488 protects ski area operators from liability for
injuries to skiers resulting from risks inherent in the sport of skiing.  It
provides, in relevant part:

[E]ach 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.

Whether the ski area is protected from liability by section 488 therefore
depends on whether the skier's injuries resulted from an inherent risk.  If
the skier's injuries resulted from a risk inherent in the sport, the ski area is
not liable for those injuries because it had no duty to protect or warn the
skier of such dangers.  See, e.g., Philippi v. Sipapu, Inc., 961 F.2d 1492,
1495 (10th Cir. 1992) (skier assumes the risk of thin and bare terrain on
ungroomed trails and such hazards do not give rise to duty to warn);
Verberkmoes v. Lutsen Mountains Corp., 844 F. Supp. 1356, 1359 (D. Minn.
1994) (if ATV in the trail was not an inherent risk then the presence of the
hazard gives rise to a duty to protect or warn on the part of the ski area);
Dillworth v. Gambardella, 776 F. Supp. 170, 172 (D. Vt. 1991) (statute
shielding ski areas from liability for inherent risks removes any duty owed to
skiers regarding those risks), aff'd, 970 F.2d 1113 (2d Cir. 1992).  If,
however, the skier's injuries were not caused by an inherent risk, there
must be a determination whether the injuries were actually caused by the
negligent operation or maintenance of the ski area.
	[¶6]  Here, the trial court concluded that Merrill's fall was caused by
an unexpected change in terrain on an ungroomed part of the trail and that
such a fall was an inherent risk associated with skiing.  Sugarloaf contends
the court properly made such a determination as a matter of law.  We
disagree.  
	[¶7]  Whether Merrill's injuries were caused by risks inherent in the
sport of skiing is a question of fact that must be submitted to the jury. 
Section 488 does not specify what risks, as a matter of law, are inherent in
skiing.  In the absence of such statutory specification, whether a skier's
injury results from an inherent risk depends on the factual circumstances of
each case.{3}  See Dillworth v. Gambardella, 970 F.2d 1113, 1119-20 (2d Cir.
1992) (whether risk is an inherent one must ordinarily be resolved by jury
in absence of legislative specification of such risks); Sanchez v. Sunday River
Skiway Corp., 810 F. Supp. 17 (D. Me. 1993) (in absence of legislative
specification of inherent risks, whether a stump in the trail was a risk posed
by an inherent danger was a question of fact precluding summary judgment);
see also Hiibschman v. City of Valdez, 821 P.2d 1354, 1360 (Alaska 1991)
(whether ski jump on beginner's trail created an inherent risk was a
question of fact for the jury when jumps were not specifically mentioned in
the applicable statute); Estate of Frant v. Haystack Group, Inc., 641 A.2d
765, 770-71 (Vt. 1994) (whether wooden corral posts created obvious and
necessary risk was a question of fact for the jury when legislature avoided
cataloguing fact-specific examples of obvious and necessary risks inherent in
sports such as skiing).  
	[¶8]  In this case, the skiers stated that the trail appeared to be
groomed and safe for skiing on both sides of the bamboo poles and that the
ditch was not visible until they were within a few feet of it.  Viewing the
evidence in the light most favorable to Merrill, the court erred in deciding
as a matter of law that the drainage ditch posed a risk inherent in the sport
of skiing.  In the circumstances present here, the factfinder could rationally
conclude that the ditch did not create an inherent danger. Sugarloaf's
attempt to warn skiers about the ditch by placing crossed bamboo poles
above it evidences Sugarloaf's recognition that skiers would not expect to
encounter such a change in terrain on a trail.  Furthermore, the factfinder
could conclude that the crossed bamboo poles negligently signalled to skiers
that they could safely ski on either side of the poles.  The facts do not so
conclusively preclude recovery by Merrill that a judgment in favor of
Sugarloaf is the only possible result as a matter of law.  Binette, 688 A.2d at
901.
	The entry is:
			Judgment vacated.  Remanded for further
proceedings consistent with the opinion herein.


Attorneys for plaintiff: N. Laurence Willey, Jr., Esq. Laurie Ann Miller, Esq. Ferris, Dearborn & Willey P O Box 609 Brewer, ME 04412-0609 Attorneys for defendant: Keith A. Powers, Esq. Elizabeth J. Wyman, Esq. Preti, Flaherty, Beliveau & Pachios, LLC P O Box 11410 Portland, ME 04104-7410
FOOTNOTES******************************** {1} 26 M.R.S.A. § 488 (1988) provides: It is hereby recognized that skiing as [sic] 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, 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 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. This statute was repealed, P.L. 1995, ch. 560, § H-9 (effective October 1, 1996), and replaced by 32 M.R.S.A. § 15217 (Supp. 1996). {2} The trial court found that the area to the right of the poles was not groomed. Viewing the evidence in the light most favorable to Merrill, however, the area to the right of the bamboo poles appeared to the skiers to be groomed and safe for skiing. {3} We do not decide or anticipate the effect of the list of inherent risks provided by section 488's successor, 32 M.R.S.A. § 15217 (Supp. 1996). That statute is not at issue in this case. Nor do we suggest that the court can never decide, as a matter of law, that a skier's injury resulted from an inherent risk. See, e.g., Swenson v. Sunday River Skiway Corp., 79 F.3d 204, 206 (1st Cir. 1996) (summary judgment for ski area affirmed when moguls that caused skier's injuries were inseparable characteristic of ski trail and an inherent risk of skiing).