
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-2273                                   JOEL W. SWENSON,                                Plaintiff, Appellant,                                          v.                           SUNDAY RIVER SKIWAY CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. David M. Cohen, U.S. Magistrate Judge]                                           _____________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Graydon G. Stevens, with whom Kelly,  Remmel & Zimmerman, Gary  D.            __________________            __________________________  ________        McQuesten,   and  Valsangiacomo, DeTora  &  McQuesten, P.C.,  were  on        _________         _________________________________________        briefs, for appellant.            Elizabeth J. Wyman, with whom Evan  M. Hansen and Preti, Flaherty,            __________________            _______________     ________________        Beliveau & Pachios, were on brief, for appellee.        __________________                                 ____________________                                    March 19, 1996                                 ____________________                      LYNCH, Circuit  Judge.  Maine has  chosen to exempt                      LYNCH, Circuit  Judge.                             ______________            ski areas  from liability for actions  for injuries resulting            from  risks "inherent" in skiing.  The statute, 26 M.R.S.A.              488 (West  1988), does, however, permit  actions for injuries            actually caused by the  negligent operation or maintenance of            the ski area.   The question presented is whether a skier who            was injured when he fell negotiating moguls not  visible from            a  "breakover"1 just above suffered  injury as a  result of a            risk  inherent in skiing  or from the  negligent operation or            maintenance of the ski area.  We hold that this case involves            the inherent risks  of skiing,  thus is  within the  immunity            Maine has chosen to  afford, and affirm the entry  of summary            judgment for the Sunday River Skiway Corporation.                      A skier  of more than 20 years  experience, Joel W.            Swenson skied down expert trails at Sunday River on March 24,            1993  before skiing  the  "3-D," an  intermediate trail.   He            started down the upper portion of 3-D, traversing it at giant            slalom  (GS) speed.  The  trail had been  groomed smooth that                                            ____________________            1.  "Moguls"  are bumps in the  snow surface of  a ski trail.            They are  created by skiers carving out their turns.  It is a            common practice for ski  areas to leave all or  portions of a            trail ungroomed so as to retain moguls.  A "breakover" is the            convergence and changeover of two or more trails of differing            slope.                 Our definitions  are from the  district court's opinion.            We   realize,  however,   that   with   changing  times   and            vocabularies  (especially  in  the   increasingly  technology            oriented world of downhill skiing), the meaning of words such            as  "mogul"  may  change.   For  example,  The  Real  Skier's                                                       __________________            Dictionary  provides  (humorously)  the  following  "archaic"            __________            definition  of the  term  "moguls": "bumps  appearing on  the            slope  before the days  of grooming machines."   Morten Lund,                   _____________________________________            The Real Skier's Dictionary (1983) (emphasis added).              ___________________________                                         -3-                                          3            far.   As he approached  the crest  of the  breakover at  the            intersection of 3-D  and the Last Mile Trail,  Swenson slowed            slightly.   What was  beyond the  breakover was  not visible.            What was  beyond the breakover were moguls  across the entire            width  of the trail.   Swenson, skiing too  fast to negotiate            the moguls, fell and  was injured.  There is no  dispute that            the moguls had formed on the trail naturally, as a result  of            normal  skier traffic. There  is also no  dispute that Sunday            River,  had it  so  desired, could  have  groomed the  entire            length of the trail smooth.  However, Sunday River, which had            designed  3-D,  as the  name implies,  to  be a  mogul trail,            designedly decided to groom only the upper portion of 3-D and            not to  remove the mogul field from the bottom portion of the            trail.                       Because  the  appeal  is  from   entry  of  summary            judgment,  our review is de  novo.  Commonwealth  of Mass. v.                                     __  ____   ______________________            Blackstone Valley  Elec.  Co., 67  F.3d  981, 985  (1st  Cir.            _____________________________            1995).    We  regard  the  record  and  draw  all  inferences            favorably to Swenson.  Id.                                   ___                      The legislative policy behind the Maine Skiers' and            Tramway Passengers' Responsibilities Act  is expressed in the            language of the statute in effect at the relevant time:                       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   of   all   feasible   safety                      measures which can  be taken.  Therefore,                                         -4-                                          4                      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 [the]                      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.            26 M.R.S.A.   488 (West 1988).                      Against this  framework, Swenson makes  two claims.            He says that Sunday  River negligently maintained and groomed            3-D in such a manner as  to create a mogul field  immediately            below  a  breakover  where  it  was  not  visible  to  skiers            approaching it from above at expected and appropriate speeds.            He also argues  that Sunday River negligently failed  to mark            or warn of this hazard.                                         -5-                                          5                      Recognizing  that  negligent design  of a  trail is            immunized  from liability under  the statute2  as interpreted            by  this court in Finnern  v. Sunday River  Skiway Corp., 984                              _______     __________________________            F.2d  530, 534 (1st Cir.  1993), the parties  have framed the            issue as  whether the  presence of  an ungroomed  mogul field            below  a  blind breakover  gives rise  to  a design  issue as            opposed to an  issue of  operation or maintenance.   To  some            extent, on particular facts, the answer to  whether a feature            of a  ski trail is a  design feature or one  of operation and            maintenance may  be a  matter of  degree.   But  we think  it            sufficiently clear in  this case that deciding to  retain and            not  groom away moguls on a  trail was a design decision that            Swenson's claim is precluded as a matter of law.                      Swenson  argues that  the term  "design" should  be            restricted to those aspects of a trail which are immutable or            permanent, such as degree of curvature or incline.  He argues            that  there was  nothing  natural, inseparable  or  necessary            about the  moguls being  just below  the  breakover and  thus            their  presence  there was  not an  inherent risk  of skiing.            While the sudden  appearance of  moguls on a  trail might  be            natural,  Swenson  argues  that these  moguls  resulted  from            Sunday  River's  decision not  to groom  and  that this  is a            legally viable distinction.   The very fact  that some choice                                            ____________________            2.  The  statute  expressly  permits  suits  arising  out  of            negligent design of a tramway  but not of a ski trail.   This            suit does not involve a tramway accident.                                         -6-                                          6            was made, he says, entitles him to  get to a jury.  We  think            that the  argument misperceives the legislative  intent.  The            trail on  which he  was injured  was designed  to be  a mogul            trail  and  the location  of  the moguls,  even  if shifting,            cannot be separated  from the design decision  made by Sunday            River.  Moguls are inherently risky for skiers -- that may be            precisely why skiers are  lured by mogul trails.   Moguls are            an  inseparable  characteristic  of  the  3-D  trail  and  an            inherent risk of skiing.  Cf. Knight v. Jewett, 11 Cal. Rptr.                                      ___ ______    ______            2d 2,  14 (Cal. 1992) (in  banc) (risk posed by  moguls is an            inseparable  part of the sport);  O'Donoghue v. Bear Mountain                                              __________    _____________            Ski Resort,  35 Cal. Rptr.  2d 467, 469 (Cal.  Ct. App. 1994)            __________            (same).                      Swenson's argument that Sunday  River had a duty to            warn of the  existence of  moguls below a  breakover must  be            weighed in light of the statute's express admonition that "it            [is] the duty  of each  skier to conduct  himself within  the            limits  of his  own  ability,  to  maintain  control  of  his            speed . . . at  all times while skiing  . . .  and to refrain            from acting in a manner which may cause  or contribute to the            injury  of himself or others." 26 M.R.S.A.   488 (West 1988).            The  convergence of two trails at a breakover with no forward            visibility  requires  a skier  to  adjust  his or  her  speed            appropriately.   While  skiing  at GS  speeds  on the  upper,            mogul-free  portion  of  the  trail, where  there  was  clear                                         -7-                                          7            visibility, may have been  appropriate, it is undisputed that            the  speed at  which Swenson  skied  below the  breakover was            inappropriate.    There was,  at the  very  least, a  risk of            another skier on the other side of the breakover, a risk this            court described  as "inherent" in  Finnern, 984 F.2d  at 537.                                               _______            If  Swenson could  be presumed  by law  to have  assumed that            risk,  there seems  no principled  basis for  saying  that he            could not be  presumed to  have assumed the  risk that  other            unextraordinary unseen hazards in  the nature of moguls might            be present beyond the crest.                      Swenson's  own expert  testified that  Swenson's GS            speed  and style  made it  impossible for  him to  handle the            mogul field  he encountered  and  that even  an expert  skier            could not  have negotiated  the mogul  field at  Swenson's GS            speed.   Swenson testified that had he been skiing slower, he            could  have  handled  the  moguls.    The  breakover  itself,            combined with the lack of  visibility, put Swenson on  notice            that there might be  moguls (or other comparable hazards)  --            the presence of which clearly are inherent risks of skiing --            just  below.   The breakover  provided  a natural  warning of            risks  below that  required  Swenson to  slow.   The  statute            placed the responsibility of  guarding against those risks on            Swenson.  Under the circumstances, there was no duty to warn.                                                      -8-                                          8                      Affirmed.                      ________                                         -9-                                          9
