PESSL v BRIDGER BOWL

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No. 12577 I N T E SUPREME C U T O THE STATE O M N A A H OR F F OTN 1974 FRED PESSL, P l a i n t i f f and Respondent, BRIDGER BOWL, a Montana c o r p o r a t i o n , RM A and RIBLET T A W Y COMPANY, a c o r p o r a t i o n , Defendants and A p p e l l a n t s . Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , R on or able W. W. Lessley, Judge p r e s i d i n g . Counsel of Record : For Appellants : Poore, McKenzie and Roth, B u t t e , Montana A l l e n R. McKenzie argued, B u t t e , Montana Berg, OIConnell, Angel and Andriolo, Bozeman, Montana For Respondent : Bolinger and Wellcome, Bozeman, Montana Page Wellcome argued, Bozeman, Montana - -- Submitted: Decided : May 20, 1974 JUL - 9 1974 M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court. T h i s i s an a p p e a l from a judgment a g a i n s t defendant and from an o r d e r denying motions f o r a new t r i a l and judgment n o t withstanding the verdict. The c a s e was t r i e d i n G a l l a t i n County before a jury. P l a i n t i f f Fred P e s s l brought a c t i o n a g a i n s t Bridger Bowl, a Montana c o r p o r a t i o n , and R i b l e t Tramway Company a l l e g i n g t h e i r negligence caused an a c c i d e n t and i n j u r y s u s t a i n e d by p l a i n t i f f on February 22, 1972. P l a i n t i f f a l s o a s s e r t e d a c l a i m based on t h e d o c t r i n e of s t r i c t l i a b i l i t y and breach of implied warranty a s t o R i b l e t Tramway Company and a c l a i m r e l y i n g on t h e d o c t r i n e of r e s i p s a l o q u i t u r a s t o Bridger Bowl. Defendants answered g e n e r a l l y denying a l l a l l e g a t i o n s . The d i s t r i c t c o u r t dismissed t h e a c t i o n a s t o defendant R i b l e t Tramway Company and no appeal i s involved w i t h R i b l e t . The j u r y r e t u r n e d a v e r d i c t a g a i n s t defendant Bridger Bowl i n t h e amount of $30,886.90. As p l a i n t i f f , who was s k i i n g a t Bridger Bowl a s a season t i c k e t h o l d e r which e n t i t l e d him t o r i d e a l l l i f t s , was proceeding up t h e Bridger c h a i r l i f t t h e r e was a sudden s w i r l of snow and i n c r e a s e i n t h e wind a t a p o i n t 40 t o 50 f e e t from Tower 3. The c a b l e holding t h e c h a i r d e r a i l e d from t h e sheave wheels on Tower 3 causing p l a i n t i f f ' s c h a i r t o drop t o t h e ground, rebound and throw p l a i n t i f f t o t h e ground. P l a i n t i f f was 71 y e a r s o l d a t t h e time. He was s e v e r e l y i n j u r e d . Defendant Bri-dger Bowl o p e r a t e s a r e c r e a t i o n a l s k i a r e a , including four l i f t s . The a r e a i s operated under a s p e c i a l u s e permit from t h e United S t a t e s F o r e s t Service and i s s u b j e c t t o i t s r e g u l a t i o n s and i n s p e c t i o n . The a r e a i s i n s p e c t e d each y e a r and had been approved f o r t h e 1971-72 s k i season. O February 22, 1972 p l a i n t i f f had been s k i i n g i n t h e mornn ing. A f t e r I-unch t h e wind picked up s o t h a t s k i i n g was n o t t o o p l e a s a n t on t h e Alpine l i f t where he had been s k i i n g . He decided t o go t o Deer Park l i f t which i s a more p r o t e c t e d a r e a . t o t h a t a r e a he used t h e B r i d g e r l i f t . To g e t The wind was s t r o n g e r and d r i f t i n g o r blowing snow was n o t i c e a b l e . The Deer Park l i f t had been s h u t down because of t h e h i g h wind. O t h a t day t h e B r i d g e r l i f t was b e i n g o p e r a t e d i n s p i t e of n p r i o r n o t i c e of a m a l f u n c t i o n of a d e r a i l c i r c u i t s w i t c h . The f a i l u r e of t h i s s w i t c h t o o p e r a t e would have e i t h e r an a c c e l e r a t i v e o r dampening f o r c e on t h e v e l o c i t y w i t h which t h e c a b l e would rebound. I n v e s t i g a t i o n of t h e a c c i d e n t was conducted on February 23, 1972 by Ross MacPherson and Leroy S c h u l t z , United S t a t e s F o r e s t S e r v i c e employees, and by E m i l Cochand, Wes Hayes and George Rule, employees of B r i d g e r Bowl, A w r i t t e n r e p o r t was submitted by B r i d g e r Bowl t o t h e S t a t e A e r i a l Tramway Board. The B r i d g e r em- ployees found no d e f e c t i n t h e l i f t and s p e c i f i c a l l y no d e f e c t i n o r misalignment of t h e sheave wheels l o c a t e d a t Tower 3 r e q u i r i n g r e p a i r o r replacement. MacPherson was t h e F o r e s t e r i n c h a r g e of t h e a r e a . was Regional Ski L i f t Engineer r e s p o n s i b l e f o r s k i a r e a s . Schultz MacPherson was a t t h e s i t e of Tower 3 b u t remained on t h e ground a t t h e time of the investigation. S c h u l t z went up t h e tower w i t h B r i d g e r Bowl employees and i n s p e c t e d alignment and c o n d i t i o n of t h e sheave wheels. S c h u l t z prepared an a c c i d e n t i n v e s t i g a t i o n r e p o r t which was, i n p a r t , admitted i n t o evidence, More w i l l be s a i d l a t e r concerning t h i s report, The i s s u e s on a p p e a l a r e : 1. 2. 1 i The d u t y of c a r e owed t o p l a i n t i f f . 3, I) Admissibility of a f o r e s t service report. I n s t r u c t i o n s g i v e n and r e f u s e d . B r i d g e r Bowl submitted a w r i t t e n r e p o r t t o t h e S t a t e A e r i a l Tramway Board d a t e d February 24, 1972. That r e p o r t s t a t e d : "De- r a i l m e n t due t o wind ( t w i s t e r ) . " and "wind was o n l y c a u s e of deropement." N e i t h e r F o r e s t e r PlacPherson n o r B r i d g e r Bowl employees Cochand, Hayes o r Rule d i s c o v e r e d any d e f e c t i n t h e l i f t and s p e c i f i c a l l y no d e f e c t i n o r misalignment of t h e sheave wheels l o c a t e d a t , Tower 3, requiring repair or replacement. MacPherson, for the Forest Service, authorized resumption of operation of the lift the day following the inspection without change or restriction. A review of the testimony shows clearly that plaintiff endeavored to show negligence on the part of Bridger Bowl by a showing that deropement was caused by misalignment of the sheaves carrying the cable at Tower 3. plaintiff's witness Sowder, an official of Riblet Tramway Company, testified to the effect that a misalignment of the sheaves of three inches would have an effect which would result in the cable coming out of the sheave easier. To establish that this misalignment condition existed at the time of lai in tiff's accident, plaintiff relied on an undated accident investigation report signed by Schultz, the Forest Service Regional Ski Lift Engineer. Plaintiff first attempted to introduce the evidence through witness Cochand, Bridger owl's manager. The court sustained an objection that the evidence was an interoffice memorandum and report between one department of the Forest Service and anoth.er and was hearsay and incompetent. plaintiff's next effort was to inquire about the reports from Sowder and again the court sustained Bridger owl's objection on the grounds that the report was hearsay; lack of opportunity to cross-examine and, tb.t the testimony sought would be prejudicial on a primary issue of the case. Plaintiff's third attempt was ultimately successful and the report was admitted on the basis of a foundation laid through MacPherson. At the first attempt by plaintiff to introduce the report, counsel for Bridger Bowl conceded that the copy of the report was a true and accurate copy, but that was all. Plaintiff sought to introduce it under the Uniform Business Recordsas Evidence Act, section 93-801-2, R.C.M. 1947. To give a word picture of the situation, we quote excerpts of testimony regarding the report: ' ' 1 ~ ~WELLCOME: We will offer in evidence, Your Honor, . plaintiff's Exhibit 15, under the Uniform Business Records, as evidence, Act. "MR. IcKENZIE: May I v o i r d i r e ? "THE COURT : Yes, you may. l'1.1~.McICENZIE: M r . MacPherson, you have t e s t i f i e d t h a t you were p r e s e n t d u r i n g t h e c o u r s e of t h e You d i d n o t p r e p a r e t h i s r e p o r t ; d i d you? investigation. ''TIIE WITNESS : No. "1~4R. McKENZIE: And a s a m a t t e r of f a c t t h i s r e p o r t was s e n t d i r e c t l y t o and was a p a r t of t h e f i l e s of t h e r e g i o n a l o f f i c e i n Missoula; i s t h a t t r u e , s i r ? "THE WITNESS: Yes. "PIZR. McMENZIE: You d i d n o t e v e r s e e t h i s r e p o r t u n t i l about two days ago; i s t h a t c o r r e c t , s i r ; o r , t h r e e days ago ? "WITNESS: Yes; l a s t week sometime. "I.IR.I~CKENZIE: Yes. So t h i s r e p o r t and t h e i n f o r m a t i o n c o n t a i n e d t h e r e i n can n o t be a u t h e n t i c a t e d by you from your p e r s o n a l r e c o l l e c t i o n o r knowledge gained i n t h e c o u r s e of t h e i n v e s t i g a t i o n ; i s n ' t t h a t t r u e ? "MR. WELLCOME: I o b j e c t t o t h a t q u e s t i o n , i f i t i s on v o i r d i r e . That i s n o t an element of t h e Uniform B u s i n e s s , a s r e c o r d s evidence Act. "THE COURT: Overruled. "THE WITNESS: II You may answer. Would you t r y t h a t a g a i n . (Reporter r e a d l a s t q u e s t i o n . ) "THE COURT: I am l e t t i n g t h i s i n on t h e b a s i s of s o u r c e of i n f o r m a t i o n under t h e Uniform Business Records. All right. "THE WITNESS: I r e a l l y d o n ' t understand i t , t h e d e t a i l s of t h e q u e s t i o n . I s t a y e d down on t h e ground and S c h u l t z went up on t h e l i f t w i t h B r i d g e r owl's man and made t h e inspection. "HR. McKENZIE: So, any comments a s t o what were observed t h e r e t h a t a r e contained i n t h i s r e p o r t a r e s o l e l y h i s t o r y , and you cannot t e s t i f y t o such i n f o r m a t i o n from your own p e r s o n a l knowledge o r o b s e r v a t i o n ? "THE WITNESS: hat's r i g h t . "MR. T4cI(ETJZIE: And. a s a m a t t e r of f a c t a s you have t e s t i f i e d , you a r e n o t t h e c u s t o d i a n o f t h i s p a r t i c u l a r r e c o r d , a r e you, s i r ? "THE TrJITNESS: "1.IR. McKENZIE: "THE WITNESS: J ; No. The c u s t o d i a n i s i n Missoula? hat's r i g h t . J J c c ''MR. McKEldZIE: W w i l l o b j e c t , i f t h e Court p l e a s e , on e t h e gound and f o r t h e r e a s o n t h a t t h e proposed e x h i b i t i s based on h e a r s a y , a s t o t h i s Defendant, The e x h i b i t contains information pertinent to a primary issue in the case. And its admission into evidence would be prejudicial to the Defendant, Dridger Bowl, on the ground and for the reason that it would be prevented from cross-examining the author of the report. And the best evidence, is likewise, the testimony of the author of the report. "l.1R. ANGEL: May I have one question on voir dire? "THE COURT: Yes, you may. "lvfR, ANGEL: In view of the fact that this document did not reach your files until last week, in the month of March, 1973, are you really able to say when the report was prepared by LeRoy Schultz? " M R . ANGEL: I have no objections , Your Honor, but I just wanted to find that out. * J" Let the record show the jury is "THE C0UR.T: outside the presence of the Court. I will hear you Mr, Wellcome, on this. "MR. WELIACOPE: Well, Your Honor, my position, simply stated, is that it is admissible under the Uniform Business Records Act. We had an attorneys pre-trial conference the other day and there was never any indication given to me that I would have to call somebody from Missoula, who was the actual custodian of this record, to lay a proper foundation for it. It was my understanding that there was no problem as to the foundation, and there could be other objections but not as to the foundation, that this was a true report and record of the Forest Service. All of these other objections are being interjected, and I have no opportunity to meet this evidence because it is a regional thing from the Forest Service in Missoula. MacPherson did receive the report and is a custodian here of the report, and he made the investigation with Mr. Schultz. As a matter of fact, may I ask Mr. MacPherson a couple of questions outside the presence of the jury? "THE COURT: Yes, you may. "Q. lsnlt it true that you had conversations with Hr. Schultz pertaining to what he found in his investigation? A. Yes, "Q. And didn't he relate to you. generally some of the things that are contained in this report? A. Some of the things were new to me when I saw it. "Q, Not the conclusion or anything, but 1 mean, the things that he checked and what he did? Not what hearsay he got, not to whom he talked, but the investigation generally, didn't he discuss that with you? A , We had different motives for making inspections. I asked him to tell me if the lift was safe to operate again to certify to me it was safe. That is what I was concerned with. At the end of the day, he told me the lift could be opened to the public the next day. "Q. In connection with whether this was prepared immediately or shortly thereafter, isn't it true that you had some knowledge of this report--even if you didn't have a copy--shortly after it was prepared and submitted? A. Yes. "?.IR. WELLCOME: Again, Your Honor, I am frankly surprised, and if this is going to be the condition, then I would like to close my testimony and request a continuance to bring somebody from !.Iissoula. but, I didn't think I would have to do that. " M R .IfcKENZIE: I raise this point only because this man is not the custodian under he Uniform Business Records Act. The real gist of my objection is that that Act does not allow the introduction of hearsay testimony in the form of an official report based on the statement someone makes who is not available for cross-examination. And that is exactly the philosophy. "BY MR. McKEMZIE: "Q. Mr. MacPherson, this accident investigation report was made to and retained by the chief counsel of the regional office; is that true, sir? A. Correct. And this was kept by him, and not made available by "Q. reason of requirements concerning possible litigation; isn't that true? A. Yes. "Q. Now, this report prepared by Mr. Schultz, as you have said, relates to certain findings concerning sheave assemblies, etc., which were not observed by you isn't that true? A. That's right. "Q. There is a reference here to alignment, checking alignment. Did you personally observe any misalignment of the sheaves from where you were? A. No; I was too far away. ''Q. You were on the ground?" The edited report of Schultz, disputed Exhibit 15, provides the only basis upon which plaintiff rests his claim that there was a misalignment or defect in the sheave wheels which caused the deropement and supports the version of plaintiff's testimony that the cable merely rolled off the side of the sheave wheels rather than being blown off by the wind. Clearly the report had a prejudicial effect. Plaintiff argues the effect of the misalignment statements in the report was not prejudicial in any event because there was no proof the misalignment was the cause rather than the result of the deropement. As we have observed heretofore, plaintiff was clearly testifying that the cable merely rolled off the side of the sheave. P l a i n t i f f f u r t h e r a r g u e s t h a t i n view of t h e o p e r a t i o n d u r i n g extreme wind c o n d i t i o n s , t h e absence of c a b l e c a t c h e r s and nono p e r a t i o n of t h e d e r a i l s a f e t y c i r c u i t , t h e r e was ample evidence of n e g l i g e n c e a p a r t from t h e evidence of misalignment. Perhaps s o , b u t t h e i n t r o d u c t i o n of t h e r e p o r t under c i r c u m s t a n c e s such a s h e r e c o u l d n o t h e l p b u t be p r e j u d i c i a l . A l l of t h e p e r s o n s p r e s e n t a t t h e i n s p e c t i o n s a i d t h e r e was no misalignment w h i l e t h e r e p o r t s t a t e d t h e r e was, and t h a t "The Area [ p e r s o n n e l ] c o r r e c t e d t h i s alignment i n m presence. y 11 As IYiacPherson's testimony i n d i c a t e s , t h e r e p o r t was made f o r t h e purpose of p o s s i b l e l i t i g a t i o n and r e t a i n e d by t h e P l a i n t i f f d i d n o t proceed r e g i o n a l counsel f o r t h e Forest Service. under Rule 36, M.R.Civ.P., and r e q u e s t an admission a s t o t h e f a c t s and genuineness of t h e r e p o r t by f u r n i s h i n g a copy. Neither a t r u e copy n o r t h e o r i g i n a l h a s e v e r been made a v a i l a b l e . What h a s been expunged and what a t t a c h m e n t s were e l i m i n a t e d does n o t appear. Here p l a i n t i f f made no showing o t h e r t h a n he was producing t h e a l t e r e d and expurgated copy of t h e r e p o r t which t h e i d e n t i f y i n g w i t n e s s l4acPherson had r e c e i v e d from i t s c u s t o d i a n . I t i s a p p a r e n t t h e r e p o r t was simply n o t a b u s i n e s s r e c o r d a s contemplated by s e c t i o n 93-801-2, m i s s i b l e under s e c t i o n 93-901-1, R.C.M. R.C.M. 1947. Nor i s i t ad- 1947, t h e Uniform O f f i c i a l Reports a s Evidence Act. Richardson v. Farmers Union O i l Co., 131 Mont. 535, 312 P.2d 134. Unsworn r e p o r t s where t h e r e i s no r i g h t t o cross-examine come w i t h i n t h e h e a r s a y r u l e and a r e i n a d m i s s i b l e . S h i l l i n g s t a d v. Nelson 141 Mont. 412, 378 P.2d 393. The admission of t h e r e p o r t over o b j e c t i o n was e r r o r and r e q u i r e s a new t r i a l . The second i s s u e on a p p e a l r e g a r d s t h e duty of c a r e ; t h a t i s , whether t h e s t a t u s of a s k i l i f t i s a common c a r r i e r and t h e d u t y owed a passenger f o r h i r e a p p l i e s , o r whether t h e d u t y owed i s reasonable care, The t r i a l c o u r t i n s t r u c t e d : II At the time of the accident in question, the defendant Bridger Bowl was a common carrier operating a ski lift on which the plaintiff was a passenger for hire. II "YOU are instructed that the defendant Bridger Bowl is a common carrier of persons for reward. Such carriers are obligated to carry safely those people who they take onto their transportation facilities. To their passengers they owe both a duty of utmost care and the vigilance of a very cautious person. Such carriers are responsible for any, even the slightest, negligence and are required to do all that human care, vigilance and foresight reasonably can do under all the circumstances.1 1 Eridger Bowl argues that the decision and ruling of the trial court on the question of the duty of care owed to the plaintiff was error in that it was in direct conflict first, with the decision in Brown v. Columbia Amusement Co., 91 Mont. 174, 6 P.2d 874, and second, the specific language of section 69-6615, R.C.M. 1947, which is part of the Passenger Tramway Act of 1971. Brown followed the law generally as to the duty of an owner of a place of anusement to his patrons, which was that of reasonable or ordinary care. & An earlier case, Phillips v. Butte Jockey Club Fair Assn., 46 Mont. 338, 127 P. 1011, specifically rejected the analogy between a passenger of a common carrier for hire and a patron of an amusement place. In 1971 the Passenger Tramway Act, sections 69-6601 through 69-6617, R,.C.M. 1947, was enacted. Section 69-6601 states the policy of the state: * it shall be the policy of the state to protect its citizens and visitors from unnecessary mechanical hazards in the design construction and operation of passenger tramways, but not from the hazards inherent in the sports of mountaineering, skiing and hiking, or from the hazards of thel Iarea served by the skier or other sportsman * i k . If+; -. 1 #8 Section 69-6615, R.C.M. lt 1947, provides: Passenger tramways shall not be construed to be common carrier or public utilities for the purposes of regulation within the meaning of the laws of the state of Montana. I t P l a i n t i f f a r g u e s simply t h a t s e c t i o n 69-6615, R.C.M. 1947, h a s t o do w i t h r a t e s t r u c t u r e and has no l i m i t a t i o n upon t h e c o n s t r u c t i o n of a proper l e g a l s t a n d a r d of c a r e which should be applicable to a s k i l i f t , A s t o s e c t i o n 69-6601, R.C.M. 1947, p l a i n t i f f a r g u e s he was n o t i n j u r e d because of a hazard i n h e r e n t i n t h e s p o r t of s k i i n g ; b u t r a t h e r , he was i n j u r e d because of n e g l i g e n c e i n d e s i g n , c o n s t r u c t i o n and o p e r a t i o n of t h e s k i l i f t . However, t h e words "unnecessary mechanical h a z a r d s f ' when coupled w i t h t h e s e words a l s o appearing i n s e c t i o n 69-6601 he s t a t e , through t h e passenger tramway s a f e t y b o a r d , s h a l l r e g i s t e r a l l passenger tramways i n t h e s t a t e , e s t a b l i s h r e a s o n a b l e s t a n d a r d s of d e s i g n , c o n s t r u c t i o n and o p e r a t i o n a l p r a c t i c e s " , e s t a b l i s h e s a s t a n d a r d of c a r e . (Emphasis s u p p l i e d . ) The d u t y i s one of r e a s o n a b l e o r o r d i n a r y c a r e and I n s t r u c t i o n s No.. 16 and 1 7 should n o t have been given. Bridger Bowl a l s o q u a r r e l s w i t h I n s t r u c t i o n No. 1 7 i n t h a t i t goes f a r beyond t h e d u t y of c a r e even f o r a common c a r r i e r . W need n o t determine t h i s h e r e , b u t r e f e r t o Risken v. Northern e Pac. Ry., 137 Mont. 57, 350 P.2d 831, P l a i n t i f f c i t e s Summit County Development Corporation v. Bagnoli, 166 C o b 27, 441 P.2d 658, 664, where t h e Colorado Court said: "This i s t h e f i r s t occasion we have had t o c o n s i d e r t h e degree of c a r e r e q u i r e d of a s k i l i f t o p e r a t o r . W have noted i n o t h e r j u r i s d i c t i o n s where t h e s p o r t e of s k i i n g h a s a l s o become h i g h l y p o p u l a r , c o u r t s have imposed on s k i l i f t o p e r a t o r s a common c a r r i e r s t a t u s , t h u s r e q u i r i n g t h a t a h i g h e r degree of c a r e be e x e r c i s e d i n t h e o p e r a t i o n of t h i s type of f a c i l i t y . [Citing cases ] " ~ e c a u s eof t h e e x i s t e n c e of t h e above d e s c r i b e d r u l e of Lewis, s u p r a , and t h e n a t u r e and purpose of our s t a t u t e s p e r t a i n i n g t o common c a r r i e r s a t t h e t i m e of t h i s a c c i d e n t , t h e r e was no need t o d e s i g n a t e t h e s k i l i f t o p e r a t o r a s a common c a r r i e r i n I n s t r u c t i o n No. 15. However, t h i s i s of no consequence, s i n c e t h e paramount purpose of I n s t r u c t i o n No. 15 was t o convey t o t h e j u r y t h e r u l e of law t h a t a c h a i r s k i l i f t o p e r a t o r must e x e r c i s e t h e h i g h e s t d e g r e e of c a r e commensurate w i t h t h e p r a c t i c a l o p e r a t i o n of t h e s k i l i f t , It accomplished t h a t purpose. The d e f e n d a n t ' s c o n t e n t i o n t h a t t h e giving of t h i s i n s t r u c t i o n constituted prejudic i a l e r r o r i s rejected. I1 This c a s e , of course, does not construe ~ o n t a n a ' sPassenger Tramiay Act nor case law on r e c r e a t i o n a l f a c i l i t i e s . The i s s u e s concerning i n s t r u c t i o n s have been answered i n our discussions h e r e t o f o r e , so w e need n o t discuss them f u r t h e r . The judgment i s reversed and t h e cause i s remanded f o r new trial. W Concur: e i ' \ Justices. I

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