
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                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 & Stevens  was            ________________            _________________________________        on brief for appellant.            Evan M. Hansen with  whom Elizabeth J. Wyman and Preti,  Flaherty,            ______________            __________________     _________________        Beliveau & 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
