
USCA1 Opinion

	




          March 1, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1978                                   SHARON McGUIRE,                                Plaintiff, Appellant,                                          v.                           SUNDAY RIVER SKIWAY CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            John G.  Connor with  whom Law  Office of  John G.  Connor was  on            _______________            _______________________________        briefs for appellant.            Evan M. Hansen with whom Elizabeth  J. Wyman and Preti,  Flaherty,            ______________           ___________________     ________________        Beliveau & Pachios were on brief for appellee.        __________________                                 ____________________                                 ____________________                 Per Curiam.   Appellant Sharon McGuire,  a novice skier,                 __________            suffered  a serious knee injury when she fell during a lesson            on a  beginner slope  operated by  the appellee  Sunday River            Skiway  Corporation.   McGuire brought this  diversity action            against Sunday River.   The complaint, as eventually amended,            contained  six  counts  and  several  different  theories  of            wrongdoing.   Ultimately, the district court  granted summary            judgment in favor of Sunday River and dismissed the case.                 The facts  are set forth in the district court's 11-page            opinion, and it is unnecessary to recount them.  Although the            appeal  has  been  effectively  briefed  at  some  length  by            McGuire,  we  think that  the  district  court's decision  is            correct and  that little  would  be gained  by restating  the            district court's reasoning in  somewhat different words.  Two            points,  however, may usefully be added  to what Judge Hornby            has said.                 Much of McGuire's argument on appeal is  directed to the            admitted failure of her instructor or anyone else employed by            Sunday  River to  warn her  that even  a beginner,  skiing in            generally  safe  conditions  under  proper  instruction,  can            suffer a mishap  and a  serious injury.   The district  court            held, as we have ourselves held  in an earlier case, that the            failure  to warn  claims--based  on the  inherent dangers  of            skiing--are severely  limited by Maine's  Skiers' and Tramway            Passengers' Responsibilities Act,  26 M.R.S.A.    488 (1991).                                         -2-                                         -2-            See generally Finnern v. Sunday River  Skiway Corp., 984 F.2d            _____________ _______    __________________________            530, 533 (1st Cir. 1993).                 Section 488 in pertinent  part declares that skiing "may            be  hazardous  to skiers  . .  .  regardless of  all feasible            safety measures" and except as otherwise provided                  each  skier . . .  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.            As we said in Finnern, this provision essentially  means that                          _______            a  ski  area has  no  duty to  warn  a skier  of  the dangers            inherent  in skiing.   984  F.2d at  537.   McGuire's injury,            apparently  resulting from  the failure  of a ski  binding to            release as she fell, is a common danger in skiing.                 McGuire's brief  on appeal  argues inventively that  the            assumption of  the risk  doctrine at  common law  shifted the            risk  of dangers that were apparent to the person who assumed            the risk.  As a  beginner, says McGuire, she was  ignorant of            the  danger and therefore cannot have assumed it.  Indeed, it            is the failure to warn her of such a risk that is at the core            of her negligence  claim.   In reviewing a  grant of  summary            judgment, such  facts may reasonably  be assumed in  favor of            McGuire.                 But whatever  the common-law  tradition may  be, Maine's            statute does not say  that the risks assumed are  those known                                         -3-                                         -3-            to  the  particular skier.   That  statute declares  that the            sport  is dangerous, and makes  the skier assume  the risk of            the dangers  "inherent in the  sport."  Neither  the language            nor the  context of  this provision suggests  that subjective            knowledge on the part of the  injured skier is required.   An            earlier portion of section 488 makes it crystal clear that it            embraces the least experienced of skiers.                 Although  the statute cuts  off a naked  failure to warn            claim in  the present  case, McGuire  also  alleges that  she            actually inquired about  the risks  of injury  in a  beginner            class  and her ski instructor  replied with a  series of what            the  district  court  called "encouragements"  (e.g.,  we are                                                            ____            going  to have a good time, nothing  is going to happen).  On            appeal, McGuire  stresses that the instructor  also said that            no one  had ever been hurt  in her class.   Even if literally            true,  says McGuire's  brief,  this  statement  affirmatively            created  a false  impression since  injuries occur  with some            regularity even in beginner classes.                 The  Maine  statute does  not  purport  to shield  false            statements,  but we think that in this instance there is very            little difference between the supposed false impression and a            simple failure to  warn.   McGuire was a  grown-up with  some            knowledge of  the world; quite  apart from the  ski equipment            rental agreement she had just signed (warning "that  there is            an inherent danger in the use of any ski equipment"), she--or                                         -4-                                         -4-            at least the hypothetical reasonable person--had to know that            skiing involves some dangers.                  In all  events, the  instructor never said  that dangers            were entirely absent.  She made soothing sounds and said that            no  injury had  been suffered  by her  students in  the past.            What  was left  out may  have mattered;  perhaps a  vivid and            precise description of the frequency and severity of injuries            among  beginners  would  have  deterred  McGuire.    But  the            omission is  precisely what the Maine statute protects in the            case  of ski resorts.  Doctors may envy the Maine statute but            it is not  unconstitutional for the legislature to  draw such            lines.  See, e.g., Choroszy v. Tso, 647 A.2d 803, 806-07 (Me.                    ___  ____  ________    ___            1994)  (discussing  the  open  courts  and  equal  protection            provisions of the Maine constitution).                 Affirmed.                 ________                                         -5-                                         -5-
