

                    [Not for Publication]
                United States Court of Appeals
                    For the First Circuit
                                         

No. 97-1375

                      DIANA M. GILBERT,

                    Plaintiff, Appellant,

                              v.

                  SUNDAY RIVER SKIWAY CORP.,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]                                                               

                                         

                            Before

                     Stahl, Circuit Judge,                                                     
                Bownes, Senior Circuit Judge,                                                        
                  and Lynch, Circuit Judge.                                                      

                                         

Alton C. Stevens with  whom Marden, Dubord, Bernier &amp; Stevens  was                                                                         
on brief for appellant.
Evan M. Hansen with  whom Elizabeth J. Wyman and Preti,  Flaherty,                                                                              
Beliveau &amp; Pachios were on brief for appellee.                          

                                         

                       October 22, 1997
                                         
          Per Curiam.    This   appeal   raises   an  unusual                      Per Curiam.                                

argument:  that  the  district  court's  jury   instructions,

although     correctly   summarizing  the   controlling  law,

described a  legal issue not  generated by the  evidence, and

therefore were so likely to have confused the jury that a new

trial is warranted.  We reject this argument and affirm. 

          On  March   10,  1994,   plaintiff/appellant  Diana

Gilbert participated in  the Guaranteed Learn to  Ski Program

at   Sunday  River,  a   ski  area  owned   and  operated  by

defendant/appellee Sunday  River  Skiway  Corporation.    The

instructor assigned to plaintiff's novice  class first taught

Gilbert and two others basic skiing techniques, including how

to  stop and  turn.   Because the  lift customarily  used for

class was not  operating, the instructor took the  group on a

lift  that  went  higher  on the  mountain  than  the  normal

beginners slope.   The instructor then directed  the students

to   ski  down  to  the   beginners  area  usually  used  for

instruction.   On  her first  turn,  Gilbert accelerated  too

quickly and fell, injuring her knee.  This suit followed. 

          The   Maine   Skier's   and   Tramway   Passengers'

Responsibilities  Act ("MSTPRA"),  26 M.R.S.A.    488 (1988),

states  that "each  skier who  participates in  the sport  of

skiing  shall be  deemed  to  have assumed  the  risk of  the

dangers inherent in the sport . . . ."  Although  section 488

is designed to protect ski area operators from  liability for

skiers' injuries,  the  statute contains  an  exception  that

imposes liability on a ski area when the skier's injuries are

                             -3-                                          3

"actually caused by the negligent operation of the ski area."

Id.   Gilbert  presented evidence  to the  jury that  the ski               

instructor  brought her to  a slope that was  too steep for a

first-time skier and that this conduct constituted  negligent

operation of the ski area.

          At  the close  of  the  evidence,  and  after  some

deliberation,  the   district  court  charged  the   jury  by

paraphrasing section 488.  The charge stated: 

          Maine  law  provides  that  everyone  who
          participates  in  the   sport  of  skiing
          assumes the  risk of dangers  inherent in
          the  sport  and  responsibility  for  any
          injury  unless  the injury  was  actually
          caused by the  negligent operation of the
          ski  area.   In this case,  the plaintiff
          Diana Gilbert  claims that  the defendant
          Sunday    River     Skiway    Corporation
          negligently  operated  its  ski  area  in
          instructing  her   where  to  ski   as  a
          beginner enrolled in the Guaranteed Learn
          to  Ski Program,  and  that  it was  this
          negligence  that  caused her  injury  and
          damages that she now seeks to recover. 
                             ...
          If you find that Sunday River was not
          negligent or that its negligence did not
          cause Diana Gilbert's injuries, then your
          verdict must be for Sunday River.

Gilbert seasonably objected to the instruction.  The jury 

returned a verdict that Sunday River was not negligent. 

          Gilbert concedes that the district court's

instruction does not misstate or misdescribe the Maine skier

statute in any way.  Rather, Gilbert argues that, because

section 488 arguably does not require the jury to decide

whether she had assumed the risk of her injuries, the court's

                             -4-                                          4

reference to assumption of the risk was so confusing that a

new trial is warranted.  For this proposition, Gilbert relies

exclusively on dictum from State v. Gilbert, 473 A.2d 1273                                                       

(Me. 1984), which, while affirming a trial court's refusal to

include an irrelevant affirmative defense instruction in a

criminal case, states the unremarkable proposition that "[a]n

instruction on an issue not generated by the evidence would

serve only to confuse or mislead the jury."  Id. at 1277.                                                             

Gilbert's reliance is misplaced. 

          We reject Gilbert's argument for two reasons. 

First, the court's inclusion of the assumption of the risk

language was not extraneous or irrelevant.  To the contrary,

the language was a necessary part of the cogent summary of

the controlling law that the district court appropriately

provided the jury.  See Hardin v. Ski Venture, Inc., 50 F.3d                                                               

1291, 1295 (4th Cir. 1995)(noting it would be "truly bizarre"

if the district court were not allowed to cite assumption of

the risk language in the controlling skier statute in its

instructions).  "The instructions, rather than being

overinclusive, were thorough."  State v. Baker, 505 A.2d 96,                                                          

98 (Me. 1986).  Second, assuming for the sake of argument

that the court's summary of section 488 constitutes an

erroneous instruction on an issue not generated by the

evidence, we are at a loss to see how Gilbert suffered legal

prejudice as a result.  "An error in jury instructions will

                             -5-                                          5

warrant reversal of a judgment only if the error is

determined to have been prejudicial, based on a review of the

record as a whole."  Davet v. Maccarone, 973 F.2d 22, 26 (1st                                                   

Cir. 1992).  The charge was a model of clarity in directing

the jury to decide whether Sunday River was negligent in its

operation of the ski area.  These instructions gave the jury

ample guidance and leeway to find Sunday River negligent. 

How an accurate description of the applicable law could have

deflected a reasonable jury from deciding whether Sunday

River was negligent truly escapes us.  

          Affirmed.   Costs to the Appellee.                      Affirmed.   Costs to the Appellee.                                                       

                             -6-                                          6
