                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                  MAY 13 1998
                                       TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                       Clerk

 WILLIAM C. BARBA,

                Plaintiff-Appellant,

           v.                                                  No. 97-2091
                                                         (D.C. No. CIV-95-749-JP)
 TAOS SKI VALLEY, INC.,                                       D. New Mexico

                Defendant-Appellee.




                               ORDER AND JUDGMENT*


Before PORFILIO, LOGAN, and MURPHY, Circuit Judges.



       In this diversity tort action plaintiff William C. Barba appeals from the district

court’s grant of summary judgment in favor of defendant, Taos Ski Valley, Inc. (Taos).

Plaintiff was injured when he hit a picnic table while skiing on Porcupine trail at Taos

and brought this action under the New Mexico Ski Safety Act, N.M. Stat. Ann. §§ 25-15-

1 to 24-15-14 (the “Act”). On appeal, plaintiff asserts that the district court erred in

determining there was no issue of material fact as to whether Taos breached its duties


       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
under the Act and the alleged breach was the proximate cause of his injuries. See id.

§ 24-15-14(A) (actions under Ski Safety Act exclusive remedy). Because plaintiff failed

to produce evidence to show a genuine issue of material fact that defendant may have

breached its duties under the Act, we need not reach the question whether the alleged

breach was the proximate cause of plaintiff’s injuries.1

              We review the grant or denial of summary judgment de novo,
       applying the same legal standard used by the district court pursuant to Fed.
       R. Civ. P. 56(c). Summary judgment is appropriate if the pleadings,
       depositions, answers to interrogatories, and 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. When applying this standard, we examine the factual record and
       reasonable inferences therefrom in the light most favorable to the party
       opposing summary judgment. If there is no genuine issue of material fact in
       dispute, then we next determine if the substantive law was correctly applied
       by the district court.

              While the movant bears the burden of showing the absence of a
       genuine issue of material fact, the movant need not negate the non-movant’s
       claim, but need only point to an absence of evidence to support the non-
       movant’s claim. If the movant carries this initial burden, the non-movant
       may not rest upon its pleadings, but must set forth specific facts showing a
       genuine issue for trial as to those dispositive matters for which it carries the
       burden of proof. An issue of material fact is genuine if a reasonable jury
       could return a verdict for the non-movant.

Wolf v. Prudential Insurance Co., 50 F.3d 793, 796 (10th Cir. 1995) (quotations and

citations omitted).



       1
         We grant plaintiff’s motion to submit the original sized Taos Ski Valley trail
map as a part of the appellate record in lieu of the reproduction contemplated by 10th Cir.
R. 30.1.3.

                                             -2-
       We first address plaintiff’s contention that he presented evidence creating a triable

issue of fact on whether Taos breached its duties under the Act. §§ 24-15-7(C) and (I).

Before the 1997 amendment § 7 of that Act provided in pertinent part:

               Every ski area operator shall have the following duties with respect
       to the operation of a skiing area:

               ....

              C. to mark conspicuously the top or entrance to each slope, trail or
       area with the appropriate symbol for its relative degree of difficulty; and
       those slopes, trails or areas which are closed, or portions of which present
       an unusual obstacle or hazard, shall be marked at the top or entrance with
       the appropriate symbols as are established or approved by the national ski
       areas association as of the effective date of the Ski Safety Act and as shall
       be modified from time to time:

               ....

              I. to warn of or correct particular hazards or dangers known to the
       operator where feasible to do so.

N.M. Stat. Ann. §§ 24-15-7(C) & (I).

       The district court, citing the above statutes, correctly summarized Taos’ duties in

three parts:

       First, [Taos] must mark each trail’s degree of difficulty. Such marking
       must be made with the appropriate symbol, must be at the top or entrance to
       the trail, and must be conspicuous. Second, [Taos] must mark those trails
       that are closed, and those parts of trails that present an unusual obstacle or
       hazard, with the appropriate symbol established or approved by the national
       ski areas association (“NSAA”). These markings must also be positioned at
       the top of or entrance to the trail but need not be conspicuous. Third, under
       section I., [Taos] must warn of or correct hazards or dangers that it knows
       about when it is feasible to do so.


                                            -3-
Appellant’s App. 199.

       Plaintiff cites Lopez v. Ski Apache Resort, 836 P.2d 648 (N.M. Ct. App. 1992), to

support his argument that summary judgment is not appropriate. Although Lopez stated

that the determination of “[w]hether a duty [under the Act] has been breached is a

question of fact,” 836 P.2d at 655, it also stated that the determination of “[w]hether a

duty exists is generally a question of law for the court to determine.” Id. Here the district

court granted summary judgment because it determined that plaintiff did not offer any

evidence on which a jury could find that Taos breached any of its duties under the Act.

       Plaintiff was injured while skiing the Porcupine run, an intermediate level slope at

Taos, when he fell and slid into a picnic table located on the right side of the trail inside

but next to the trail’s boundary line. He asserts that the table was an “unusual obstacle or

hazard” under § 7(C) of the Act that should have had a special warning rope, banner, or

sign near the location specifically warning of the presence of the picnic table. In support

of this argument plaintiff offered testimony by Dick Penniman. But the district court

determined that Penniman was not qualified to testify as an expert on compliance with the

Act. See Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996) (suggesting

expert testimony is required to indicate that action “fell outside industry norms

established by NSAA standards”). Defendant, on the other hand, presented expert

testimony that at the top the trail entrance was marked with a map that indicated the

presence of the picnic table on the side of Porcupine trail, at its approximate location.


                                             -4-
Defendant’s expert testified that the trail map, together with a sign on the trail warning of

unmarked obstacles, met the requirements of the Act. Although plaintiff argues that Taos

was required to “conspicuously” warn of unusual obstacles or hazards, as the district

court pointed out the Act does not require the warnings to be conspicuous.

       Plaintiff now argues that not only was the picnic table on the trail not

conspicuously marked, it was not marked at all. Because it was not raised below this

argument is waived. See Tele-Communications, Inc. v. Commissioner of Internal

Revenue, 104 F.3d 1229, 1232-33 (10th Cir. 1997). In any case, the admissible expert

testimony was that the marking and warning of the table was properly done.

       Plaintiff relies on § 2 of the Act, which sets forth its purpose--“to protect its

citizens and visitors from unnecessary hazards in the operation of ski lifts and passenger

aerial tramways.” N.M. Stat. Ann. § 24-15-2(A). Plaintiff asserts that the table was an

unnecessary hazard within the meaning of that section. We reject this argument in part

because § 7, not § 2, sets out the specific duties for ski operators in a skiing area.

       Plaintiff also argues that defendant violated § 7(I) of the Act. Plaintiff asserts he

presented evidence on which a jury could find the table was a hazard or danger that Taos

knew about, and thus had a duty to warn of or correct. The district court, however, found

there was uncontroverted evidence that Taos did not “know” that the picnic table was a

hazard because it had been at that same location for more than twenty years and no one

had collided with it. Further, Taos submitted uncontroverted evidence that even if the


                                             -5-
picnic table was an “unusual hazard,” the trail map board marking the location of the

picnic table on Porcupine run, and the sign warning of unmarked obstacles, were

adequate under the standards of the National Ski Areas Association, and therefore, under

the Act.

       Plaintiff also argues that rather than warn of the picnic table, the operator should

have corrected the hazard. But the plain language of the Act specifically states that the

operator must “warn of or correct” hazards. N.M. Stat. Ann. § 24-15-7(I) (emphasis

added).

       AFFIRMED.

                                                  Entered for the Court

                                                  James K. Logan
                                                  Circuit Judge




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