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, &amp;
                                                                    
Murray, Alan E. Richman, John J.  Coates, and Breit, Best, Richman,  &amp;
                                                                    
Bosch were on brief for appellant.
   
  Keith  A. Powers  with  whom  Elizabeth  A.  Olivier,  and  Preti,
                                                                    
Flaherty, Beliveau &amp; 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.

                              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.

                        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.

                   INHERENT RISKS OF SKIING AND
                                               
                 DISMISSAL OF SLOPE DESIGN COUNTS
                                                 

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
                              
    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
                                      

          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.

             REVIEW OF THE DISTRICT COURT'S GRANT OF
                                                    
                   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.

                            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.
                    

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                                18
