
USCA1 Opinion

	




          February 9, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1625                                 JAMES FINNERN, M.D.,                                Plaintiff, Appellant,                                          v.                           SUNDAY RIVER SKIWAY CORPORATION,                           d/b/a/ Sunday River Ski Resort,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET                                 ____________________            The opinion issued January 29, 1993, should be corrected as        follows:            P. 15,  1. 22 reads in part:  "[S]ki resorts are, if not"; it            should read in that pertinent part:  "[S]ki resorts are            precisely".  The corrected sentence will read:  "not have come as            a surprise to Finnern.  Ski resorts are precisely".        January 29, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1625                                 JAMES FINNERN, M.D.,                                Plaintiff, Appellant,                                          v.                           SUNDAY RIVER SKIWAY CORPORATION,                           d/b/a/ Sunday River Ski Resort,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Richard  L. O'Meara with  whom Peter  L. Murray,  Murray, Plumb, &            ___________________            ________________   ________________        Murray, Alan E. Richman, John J.  Coates, and Breit, Best, Richman,  &        ______  _______________  _______________      ________________________        Bosch were on brief for appellant.        _____            Keith  A. Powers  with  whom  Elizabeth  A.  Olivier,  and  Preti,            ________________              ______________________        ______        Flaherty, Beliveau & Pachios were on brief for appellee.         ____________________________                                 ____________________                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                    FUSTE, District Judge.   Plaintiff,  an  injured skier,                           ______________          argues  that a ski area operator negligently maintained a tree in          a particular  area of a Maine  ski slope and that  the ski resort          negligently  failed to post a warning sign alerting skiers to the          presence  of a converging  trail.   Plaintiff alleges  that these          negligent acts proximately caused  him to suffer serious injuries          in a skiing accident.                      Plaintiff  originally  brought a  five-count negligence          action against  the ski resort seeking damages.   Two of the five          counts,  loss of  consortium  and emotional  distress brought  on          behalf of plaintiff's spouse,  were voluntarily dismissed.  Based          on  considerations of  state law,1  the district  court dismissed          two more counts alleging negligent tree location or placement and          slope  arrangement for failure to  state a claim  on which relief          could be granted.   Also, the court denied plaintiff's  motion to          amend  the  tree placement  count in  order to  allege additional          facts.   Finally, the district court found the warning-sign count          adjudicable; however,  finding no  material fact was  in dispute,                                              ____________________             1The Maine legislature enacted the Skiers' and Tramway             Passengers' Responsibilities Act, 26 M.R.S.A.   488 (1991),             to limit the liability of Maine's ski area operators.  The             statute provides that skiers assume risks while skiing on             the state's slopes and immunizes ski resorts from legal             responsibility for skiing injuries "unless the injury or             death [is] actually caused by the negligent operation or                                                         _________             maintenance of the ski area by the ski area operator, its             ___________             agents or employees."  Id. (emphasis added).  Although the                                    __             statute itself does not define "operation or maintenance,"             the district court found issues of negligent slope design to                                                                ______             be outside the scope of the statute's liability limitation             exception.  Finnern v. Sunday River, Civil No. 91-0065-P-H,                         _______________________             slip op. at 3 (D. Me. Nov. 28, 1991).                                         -2-                                          2          the court granted summary  judgment -- in favor of  defendant ski          area   operator.     Plaintiff  appeals   the  district   court's          dismissals,  denial  of motion  to  amend,  and summary  judgment          decision.  For  reasons explained below,  we affirm the  district                                                       affirm          court in all relevant respects.                                          I.                                          I.                                        FACTS                                        FACTS                                        _____                    James Finnern, M.D.,2 ("Finnern")  and his wife, Denise          Finnern, were skiing down an  intermediate slope, Dream Maker, at          Sunday  River Ski  Resort3 ("Sunday River")  in Newry,  Maine, on          March 1, 1989.  The Finnerns had previously skied the Dream Maker          slope during the three  days preceding the accident and  had just          finished negotiating Dream  Maker immediately before  the fateful          run.   Finnern considered  his skiing ability  at the  time to be          somewhere between high-intermediate and low-expert levels.                      As Finnern descended the  slope, he allegedly saw three          relatively slow-moving or stopped skiers approximately 100 to 150          feet downslope,  who apparently  had entered  Dream Maker  from a          converging  beginners'  trail,  Ridge  Run.   Since,  as  Finnern          claims, he was not apprised of the convergence of Dream Maker and          Ridge Run  with a sign, and  was unaware of the  imminence of the          converging slope, he  was shocked and surprised by the appearance                                              ____________________             2Federal jurisdiction is appropriate.  Finnern is a resident             of Colorado, and Sunday River is a corporation centered and             located in Maine, and the amount in controversy exceeds             $50,000.  Thus, diversity jurisdiction is satisfied.  28             U.S.C.   1332.             3Also referred to as Sunday River Skiway Corporation.                                         -3-                                          3          of the Ridge Run skiers.  In order not to collide with or startle          the  slow-moving  skiers  below  him, Finnern  made  a  conscious          decision to  change course.   He successfully  avoided the  other          skiers by at least thirty feet.  Finnern, however, while claiming          to  be in  reasonable  control of  his  movements, came  upon  an          ordinary mogul that  sent him into the air.   The loss of control          occasioned by  the mogul jump or landing resulted in his losing a          ski  and, unfortunately,  in his  crashing into  a tree  near the          periphery of the  slope.  He came to rest  after hitting the tree          and  gliding a distance down the trail.  Finnern sustained severe          injuries.                      The tree at  issue is  located near the  tree line  and          boundary of  the slope, but is  a few feet nearer  the trail than          the other peripheral trees.   Finnern alleges that the  proximity          of the  tree to  the edge  of  the trail  proximately caused  his          accident,  and represents  an issue  of negligent  maintenance or          operation --  actionable under  state law.   Finnern also  claims          that the  lack of a warning sign was a substantial factor leading          to  his  injuries.   Defendant further  argues  that there  was a          diagrammatic sign indicating an upcoming convergence.                    Defendant ski  area operator contends that  the tree is          not  unusually positioned  and is  like many  other trees  on the          slopes of Maine's many ski areas.  Defendant also claims that ski          areas are exposed to  very limited liability under 26  M.R.S.A.            488 (1991), and that plaintiff legally assumed certain risks when          he decided to go skiing, one of which was collision with a tree.                                         -4-                                          4                                         -5-                                          5                                         II.                                         II.                                  PROCEDURAL HISTORY                                  PROCEDURAL HISTORY                                  __________________                    The skiing accident led  to three separate decisions by          the federal district court.  Following the voluntary dismissal of          the two counts touching  on Mrs. Finnern's claims of  injury, the          district court,  on November  5, 1991,  dismissed  the two  tree-          related  counts.   It  dismissed on  the  ground that  state  law          exempted  ski  resorts  from  liability based  on  slope  design.          However,  the  court denied  defendant's  motion  to dismiss  the          warning-sign  count because  it  raised  legitimate,  adjudicable          issues, namely negligent operation  and maintenance of ski slopes          under 26 M.R.S.A.   488 (1991).                      The second facet of this appeal stems from the district          court's February 14, 1992, denial of plaintiff's  motion to amend          Count II with additional  factual expositions regarding negligent          tree location.  Plaintiff  argues that the new  information would          have  prevented  the  court  from  dismissing  Count  II  of  the          complaint.     The third district court decision on appeal is the          April 22,  1992, order  granting  defendant's motion  for summary          judgment  on  the remaining  count pertaining  to  the lack  of a          convergence warning sign.   The court found no issue  of material          fact in dispute and entered judgment for the ski resort.                      We  are  asked to  review  these  three district  court          orders but, before addressing each segment of the appeal in turn,          we  discuss the state law  limiting ski resort  liability and, in                                         -6-                                          6          general  terms,  the  rationale  behind the  assumption  of  risk          doctrine underlying Maine's statute.                                         III.                                         III.                             INHERENT RISKS OF SKIING AND                             INHERENT RISKS OF SKIING AND                             ____________________________                           DISMISSAL OF SLOPE DESIGN COUNTS                           DISMISSAL OF SLOPE DESIGN COUNTS                           ________________________________          A.  Risks of Alpine Skiing          A.  Risks of Alpine Skiing              ______________________                    Maine, like many  other states,  has given  legislative          notice  that downhill  snow skiing  involves significant  risk of          injury.4     Despite   acknowledged   risks,  many   people  find          irresistible the danger inherent  in the sport of skiing,  one of          the many human challenges to nature's wrath.                      Because skiing is dangerous, and since people enjoy and          engage in  the sport in spite  of the danger,  the legislature of          the state of Maine, like many  others, decided to enact a statute          to  limit  ski  area  operators'  liability  and  to  define  the          assumption   of  risk,  general   responsibilities,  duties,  and          liabilities of skiers and ski resorts generally:                    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                                              ____________________             4See 26 M.R.S.A.   488 (1991) (Maine's law regarding skier              ___             assumption of risk and ski resort liability limitations).              Many states have enacted laws limiting liability of ski area             operators, and defining the duties of operators and skiers.              See, e.g., Alaska Stat.   09.17.060,   09.65.135 (1992)             ___  ____             (relative liability of ski resorts and skiers); Colo. Rev.             Stat.   109 (1992) (duties of skiers and penalties); Colo.             Rev. Stat.   112-13 (1992) (limitations on ski area operator             liability for inherent dangers of skiing); Conn. Gen. Stat.               29-212 (1990) (skiers' assumption of risk); Idaho Code               6-1107 (1992) (limitations of liability of ski area             operators); Idaho Code   6-1109 (1992) (liability of             skiers).                                         -7-                                          7                    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.            Skiers' and Tramway Passengers'  Responsibilities, 26 M.R.S.A.             488  (1991)  (emphasis  added).    An  understanding  of  Maine's          statutory effort to limit  ski area operator liability in  skiing          accidents is essential in our review of the district court orders          on appeal.          B.  Dismissal of Two Counts As          B.  Dismissal of Two Counts As              __________________________              Design Issues Under Maine Law              Design Issues Under Maine Law              _____________________________                    The standard for reviewing a Rule 12(b)(6) dismissal is          clear:   "[a]  complaint is  to be  construed in  the light  most          favorable  to the plaintiff; dismissal is appropriate only if 'it                                         -8-                                          8          appears beyond doubt that the plaintiff can prove no set of facts          in  support of  his claim  which would  entitle him  to relief.'"          Roeder  v. Alpha Indus.,  Inc., 814 F.2d  22, 25  (1st Cir. 1987)          ______________________________          (quoting  Conley v. Gibson, 355 U.S. 41, 45-46 (1987)).  See also                    ________________                               ________          Miranda v. Ponce  Federal Bank, 948 F.2d 41, 43  (1st Cir. 1991);          ______________________________          Feinstein  v. Resolution Trust Corp.,  942 F.2d 34,  37 (1st Cir.          ____________________________________          1991);  Correa-Mart nez v.  Arrillaga-Bel ndez, 903  F.2d  49, 51                  ______________________________________          (1st  Cir. 1990); Dartmouth Review v. Dartmouth College, 889 F.2d                            _____________________________________          13, 16 (1st  Cir. 1989).   If a trial  court accepts  plaintiff's          facts  and can envision no reasonable application of the law that          would entitle plaintiff to relief,  the court may rightly dismiss          the  case.  In  our review of  the district court's  dismissal of          Counts II and III, we must determine whether the facts supportive          to plaintiff, the applicable law,  and the interpretation of  the          law justly support dismissal.                    In the case  at hand, defendant  Sunday River moved  in          the district  court  to dismiss  all  three remaining  counts  of          Finnern's complaint for failure to  state a claim.  Specifically,          Sunday River argued that Counts II and III of the complaint state          causes  of  action  for  slope  design  negligence  and  not  for          maintenance  or operation  negligence, a  statutorily significant          distinction.  See 26 M.R.S.A.   488 (1991).                         ___                    Section  488,  Maine's  statute  entitled  Skiers'  and          Tramway Passengers' Responsibilities, greatly limits liability of          ski area operators,  excepting only liability  of ski resorts  if                               _________ ____          "the injury  or  death  [is]  actually  caused  by  []  negligent                                         -9-                                          9          operation  or maintenance  . .  . ."   26  M.R.S.A.    488 (1991)          _________     ___________          (emphasis  added).    The  law   not  only  limits  ski  resorts'          liability,  but the statute also emphasizes  that skiers assume a          significant amount of  risk in engaging  in the inherently  risky          sport  of skiing.5  Section 488 clearly states that skiers should          know  their abilities  and the  ever-present dangers  inherent to          skiing.  Id.                    ___                    The  law is clear that  a Maine ski  area operator like          Sunday  River  may only  be held  legally  liable if  its alleged          actions or inactions involved negligent operation or maintenance.          The  district  court  interpreted  this  statutory  provision  to          "preclude[] any  action for negligent  design of  the slopes  and          trails of  a ski area."   Finnern v. Sunday River,  Civil No. 91-                                    _______________________          0065-P-H,  slip op.  at  3  (D.  Me.  Nov.  28,  1991)  (citation          omitted).  We  agree as a matter of law  that design questions do          not fall within the statutory operation-or-maintenance exception.          Our review of  the district  court's dismissal of  Counts II  and          III, therefore,  must focus on whether  the facts as  seen in the          light  most  favorable  to  plaintiff  support  an  operation-or-          maintenance exception  to Maine's bar  on liability for  ski area                                              ____________________             5Assumption of risk is one of the legal terms of art that is             relatively self-explanatory.  Relevant to this case, Prosser             and Keeton note the following on assuming risks:  "[T]hose             who participate or sit as spectators at sports and             amusements may be taken to assume the known risks of being             hurt by roller coasters, flying baseballs, hockey pucks,             golf balls, wrestlers, or such things as fireworks             explosions.  Cardozo once summarized all this quite neatly:              'The timorous may stay at home.'"  W. Page Keeton et al.,             Prosser and Keeton on the Law of Torts   68, at 485-86 (5th             ______________________________________             ed. 1984) (citations omitted).                                         -10-                                          10          operators, or whether  the facts as  viewed through a  plaintiff-          friendly lens allege a nonactionable design fault.                    In  regard to Counts II and III, the district court did          identify the facts most favorable to plaintiff Finnern.  In fact,          the  trial court accepted  the facts  as delineated  by Finnern's          complaint,  such as the location  of the tree,  the confluence of          the two slopes,  and Finnern's controlled  skiing.  The  district          court,  however, found  unnecessary a  lengthy discussion  of the          facts  because  as a  matter  of law,  the  court held  that even          accepting plaintiff's  factual allegations in Counts  II and III,          "[a]llowing  the  tree  in  question to  be  present  within  the          traveled  portion of the Dream Maker trail was obviously a design          decision  rather than  an  aspect of  operation or  maintenance."          Finnern v. Sunday River, Civil No. 91-0065-P-H, slip op. at 3 (D.          _______________________          Me. Nov. 5, 1991).                       We agree as a matter of law that the tree's position as          described by plaintiff's facts,  along with the slope's allegedly          defective form and angle,  are actually averments implicating ski          area design,  and not  operation  or maintenance.6   Examples  of                                              ____________________             6We note this case appears to be unlike a recent decision             from the same district in which the court denied a motion to             dismiss in a context of a set of facts similar to the ones             in this case.  See S nchez v. Sunday River Skiway Corp.,                            ___ ____________________________________             1992 U.S. Dist. LEXIS 15616, (D. Me. Sept. 28, 1992).  We             compare the two cases without passing any judgment on             S nchez; we have only seen the district court opinion and             _______             not a page of the trial record.                    In S nchez, the ski resort left a tree stump intact                     _______             thirty feet into the skiing area of a slope.  On the motion             for dismissal, the district court determined that the relief             asked for could conceivably be granted.  The motion for             dismissal was denied since a legitimate argument could be                                         -11-                                          11          negligent operation  or maintenance would include  placing a snow          blower  or  other machine  in a  precarious  position on  a slope          without proper  warning,  or  failing  to notify  skiers  that  a          particular slope had been  closed due to poor or  dangerous trail          conditions.   But tree  placement along the  periphery of slopes,          trail direction, curvature, and degree of inclination, as well as          myriad other ordinary properties  of ski areas, are presumptively          design issues.  If tree placement or location along the periphery          of  trails  were  actionable,   ski  area  operators  and  skiers          themselves  might  find  themselves  out  in  the  cold.    As  a          California appeals court observed in a tree collision case:                     The  tree   itself  provided  a   warning  to                    plaintiff   of  the  implicit   danger  of  a                    collision  with  it.   A  fortiori, [the  ski                    resort] was under no duty  to remove it.  One                    could  ask, if  there were  a duty  to remove                    trees along  the  edges of  ski runs,  "which                    trees?"  Such a  solution, if followed to its                    logical conclusion  . . .  would finally lead                    to cutting down every tree on the mountain.          Danieley  v.  Goldmine Ski  Assocs., 218  Cal.  App. 3d  111, 122          ___________________________________          (1990).   Finding the  location of the  tree in question  and the          layout of the  surrounding slope to be design issues  as a matter          of law, we need not reach an assessment of defendant's negligence          in implementing  those decisions.   Sunday River  cannot be  held          liable for such decisions or actions under Maine law.                                              ____________________             made, according to the district court, that maintenance and             operation decisions should have caused the stump's removal             or marking.  In this case, however, maintenance purposes                                                 ____________________             have not caused a partial removal of the tree, as may have             been the case with the stump scenario in S nchez.                                                      _______                                         -12-                                          12                    We affirm  the district court's dismissal  of Counts II          and III for failure to  state a claim upon which relief  could be          granted pursuant to Maine law.  26 M.R.S.A.   488 (1991).7            C.  Denial of Motion to Amend Count II          C.  Denial of Motion to Amend Count II              __________________________________                    A  party may amend "as  a matter of  course" in certain          circumstances,   "[o]therwise  a  party  may  amend  the  party's          pleading only  by leave  of court  or by written  consent of  the          adverse  party; and leave shall  be freely given  when justice so          requires."  Fed. R. Civ. P. 15(a).                      Our  standard  for reviewing  district  court decisions          regarding  denials  of  motions  to amend  is  widely  known  and          applied.   Unless  we find  an  abuse of  discretion  in a  trial                                          ____________________          court's  decision to  deny a  motion to  amend, we  defer  to the          district  court's  superior  ability   to  weigh  the   potential          amendments against the existing factual record and legal context.          The decision  to grant  or deny  a motion  to amend  pleadings is          rightly "left  to the  broad discretion of  the district  court."          Coyne v. Somerville, 972 F.2d 440, 446 (1st Cir. 1992).  However,          ___________________          "a district court's denial of a chance to amend may constitute an          abuse of discretion if no  sufficient justification appears.  See          ___________________                                           ___          Foman  v. Davis, 371 U.S.  178, 182 (1962)."   Correa-Mart nez v.          _______________                                __________________                                              ____________________             7We recently faced a similar set of issues in Berniger v.                                                           ___________             Meadow Green-Wildcat Corp., 945 F.2d 4 (1st Cir. 1991).  In             __________________________             that case, inter alia, we upheld the dismissal of a                        __________             plaintiff's claim for injuries sustained in a collision with             a man-made obstruction on the side of a skiing trail.  A New             Hampshire statute bars suits against ski area operators for             "inherent risk" accidents in the sport of skiing.  See N.H.                                                                ___             Rev. Stat. Ann. Ch. 225-A:24.                                         -13-                                          13          Arrillaga-Bel ndez, 903 F.2d 49, 59 (1st Cir. 1990) (citing Foman          __________________                                          _____          v. Davis, 371 U.S. 178, 182 (1962)) (emphasis added).            ________                    Plaintiff Finnern argues that  he should have been able          to  amend Count II of his complaint to provide additional factual          information.   Finnern  contends  that the  information may  have          persuaded the  district court that  as a matter  of law  the tree          placement issue  could reasonably be interpreted  as an operation          or  maintenance problem and therefore was better left for a trial          on  the  merits  rather  than a  court-ordered  dismissal.8    In          denying  plaintiff's  motion   to  amend,   the  district   court          succinctly stated that the  "amendments, even if permitted, would          not  change the [c]ourt's decision to dismiss Count II."  Finnern                                                                    _______          v. Sunday River,  Civil No.  91-0065-P-H, slip op.  at 1 (D.  Me.          _______________          Feb. 14, 1992).                    The  district   court's  denial  of   Finnern's  motion          indicates that the  proposed amendments, in  the judgment of  the          trial court, provided  only additional support for the  facts and          arguments  already set forth by  the pleadings.   In other words,          more design information  about the placement  or location of  the               ______          tree or  the  form of  the  slope would  still  fail to  state  a          colorable claim under section 488 of  the Maine law.  As we noted                                              ____________________             8Finnern attempted to cure his complaint by alleging that             the tree at issue was marked with a blue stripe indicating             it was a "land boundary" tree.  Finnern suggested that part             of the ski resort's land was leased and the other part owned             by the resort.  If the tree with which Finnern collided had             been deliberately left on the slope for the purpose of             providing a boundary marker between two distinct tracts of             land, Finnern argues the tree's placement was an operations             or maintenance concern and not a design matter.                                         -14-                                          14          in Correa-Mart nez,  903 F.2d at 59, "[w]here  an amendment would             _______________          be  futile or  would serve  no legitimate  purpose, the  district          court should  not needlessly  prolong matters."   After examining          the record and relevant law in the case at hand,  we find nothing          approaching  an abuse of discretion  on the part  of the district          court in  denying the motion to  amend.  We affirm  the denial of                                                      affirm          plaintiff's motion to amend Count II.                                         IV.                                         IV.                       REVIEW OF THE DISTRICT COURT'S GRANT OF                       REVIEW OF THE DISTRICT COURT'S GRANT OF                       _______________________________________                             SUMMARY JUDGMENT ON COUNT I                             SUMMARY JUDGMENT ON COUNT I                             ___________________________                    Having addressed the appeal  of the dismissal of Counts          II and III and of the denial of the motion to amend Count  II, we          lastly review Finnern's  appeal of the district court's  grant of          summary judgment  on the  warning-sign count  in favor  of Sunday          River.    Our  review of  a  district  court's  grant of  summary          judgment is plenary.  See Griggs-Ryan v. Smith, 904 F.2d 112, 115                                ___ ____________________          (1st Cir. 1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st                           __________________________          Cir. 1990), later proceeding  Garside v. Osco Drug, Inc.,  764 F.                      ________________  __________________________          Supp. 208 (D.  Mass. 1991),  rev'd, Garside v.  Osco Drug,  Inc.,                                       _____  ____________________________          1992 U.S. App. LEXIS 24370 (1st Cir. 1992).   However, because of          the clarity of the  disposition in this case, we  need not repeat          every detail of the proceedings below, other than the factual and          legal findings crucial to a judgment on this segment of Finnern's          appeal.                      The  appropriate standards  for granting  and reviewing          summary judgments  are clear.   "Summary judgment  is appropriate          where 'the pleadings, depositions, answer to interrogatories, and                                         -15-                                          15          admissions on file,  together with the  affidavits, if any,  show          that there is no genuine  issue as to any material fact  and that          the  moving party is  entitled to judgment  as a  matter of law.'          Fed. R.  Civ. P. 56(c);  see also Celotex  Corp. v. Catrett,  477                                   ________ _________________________          U.S. 317,  323 (1986); Aponte-Santiago v.  L pez-Rivera, 957 F.2d                                 ________________________________          40 (1st Cir. 1992)."  Garside  v. Osco Drug, Inc., 1992 U.S. App.                                ___________________________          LEXIS 24370, at *1-2 (1st Cir. Sept. 30, 1992).                        We, like the district court, find no material fact in          dispute in regard  to Count I.  In brief,  Finnern claims to have          been  in control of his  skiing on the  Dream Maker run.   He had          sufficient time to consider in a rational manner his options upon          seeing slow-moving skiers  below him.9  In fact,  he had at least          100 to 150 feet advance notice of the positions of  the Ridge Run          skiers.  He made a  considered judgment to ski around them  so as          not  to startle them.  Finnern not only succeeded in avoiding the          other skiers, but he also did so by at least thirty feet.                      As  Maine law dictates,  other skiers on  the slopes of          the state's ski areas are an inherent risk assumed by skiers.  26          M.R.S.A.   488 (1991).  With  the facts that we consider material          to a  decision on the warning-sign charge of Count I -- even with          the facts as presented by Finnern  -- we agree with the  district          court's  grant of summary judgment  for Sunday River.   A warning          sign would have afforded Finnern no significant additional notice          of the presence of the Ridge  Run skiers, and Sunday River had no                                              ____________________             9The exact position of the Ridge Run skiers is a fact in             dispute; however, it is immaterial to our decision here.                                         -16-                                          16          duty  to warn Finnern  of each and  every inherent danger  on the          slopes.                      The  appearance  of the  other  skiers  on Dream  Maker          should  not have come as a surprise  to Finnern.  Ski resorts are          precisely social,  recreational areas with  many downhill skiers.          Maine's liability-limiting  statute  reflects  this  fact.    We,          therefore, cannot envision a  judge or jury who  could reasonably          find that Finnern's accident was a result of, or partially caused          by, the lack of  a convergence sign on Dream Maker.   While it is          unfortunate that Finnern's  choice of path  around the Ridge  Run          skiers  led  him to  collide  with a  tree, Sunday  River  is not          legally  responsible.  We affirm the grant of summary judgment in                                    affirm          favor of defendant.                                          V.                                          V.                                      CONCLUSION                                      CONCLUSION                                      __________                    We agree with the district court  that no material fact          is in dispute with  respect to Count I, the  warning-sign charge.          In  addition, we  believe  the district  court correctly  granted          defendant's summary judgment  motion as  to Count I  in favor  of          defendant Sunday River.                      We also  find no actionable, negligent  behavior on the          part of the ski  resort in its operation or maintenance  of Dream          Maker.   Plaintiff Finnern did  not meet his  statutory burden of          demonstrating  that  an  action  for   maintenance  or  operation                                                 ___________      _________          negligence  existed as required by  relevant law in  the state of          Maine.    With  or  without  the  amendments  to  the  complaint,                                         -17-                                          17          plaintiff  makes a  slope design  argument in  Counts II  and III                                    ______          according to section 488 and reasonable judicial inferences.  Ski          area operators in Maine are  simply not liable for the design  of          their slopes under state law.  We, therefore, affirm the district                                                        affirm                                                        ______          court's decisions.                    So Ordered.                    __________                                         -18-                                          18
