Estate of Frant v. Haystack Group, Inc.

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ESTATE_OF_FRANT_V_HAYSTACK_GROUP_INC.92-584; 162 Vt. 11; 641 A.2d 765

[Opinion Filed February 28, 1994]

[Motion for Reargument Denied May 3, 1994]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 92-584

Estate of Martin A. Frant, Supreme Court
Roger Frant, Administrator
On Appeal from
v. Windham Superior Court

Haystack Group, Inc, et al. September Term, 1993

Arthur J. O'Dea, J.

J. Eric Anderson of Cantini, Anderson & Oakman, Manchester Center, Richard
M. Howland, Amherst, Massachusetts, and Jean M. Fielding, Greenfield,
Massachusetts, for plaintiffs-appellants

David L. Cleary and Thomas P. Aicher of David L. Cleary Associates, Rutland,
for defendants-appellees

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J. Martin Frant sued for injuries received when he skied into
a wooden lift-corral post at defendant Haystack's ski area.(FN1) Haystack won
summary judgment under Vermont's sports injury statute, which states that "a
person who takes part in any sport accepts as a matter of law the dangers
that inhere therein insofar as they are obvious and necessary." 12 V.S.A. {
1037 (acceptance of inherent risks). We hold the trial court misconstrued {
1037 by concluding that, regardless of whether the ski area's use of the

wooden posts was negligent, the statute prevented recovery as a matter of
law because Frant accepted the "obvious and necessary" risk posed by the
corral post. Instead, whether the ski area's use of wooden corral posts was
an "obvious and necessary" risk should have been a threshold question of
fact decided by the jury. If the answer was affirmative, { 1037 would have
entitled the ski area to a verdict as a matter of law. But if the answer
was negative, then Frant's recovery should have been disallowed only if his
negligence in encountering the risk posed by the corral post was greater
than or equal to the ski area's negligence in creating that risk. See 12
V.S.A. { 1036 (comparative negligence). We reverse and remand for trial.
On a February day in 1987, ten-year-old Frant was skiing on the
Haymaker Trail at Haystack Mountain, a trail he had already skied at least
twice that day. Frant described himself as an intermediate-to-advanced
skier who could handle most of the trails at mountains he had previously
skied. The boy was injured when he skied into a lift corral, a holding
area designed to funnel skiers into a row to board the lift. He struck one
of a series of wooden posts supporting the rope lines of the corral. The
unpadded post was four inches by four inches by eight feet tall and stood in
frozen ground, having been installed before the ski season. Frant admitted
he was skiing "pretty fast" and that he had seen the post on his earlier
runs. In his words, he "messed up."
Haystack moved for summary judgment on the basis that the wooden post
was an "obvious and necessary" danger inherent in downhill skiing, and,
under 12 V.S.A. { 1037, Frant had assumed the risk of this danger as a
matter of law. Frant opposed summary judgment by raising a disputed factual
issue about whether the corral's unpadded wooden post construction, as

opposed to the corral itself, was "necessary" within the meaning of 12
V.S.A. { 1037. Frant submitted the affidavit of a ski-area safety expert
who stated that it was a common practice to pad corral posts in anticipation
of skiers colliding with a post or pushing someone else into one. The affi-
davit further stated that there was "definitely a safer way of providing a
[corral] line and support without using 4" x 4" posts," by using "forgivable
[plastic] types." The expert's opinion was basically that Frant's injury
was foreseeable and resulted from "a well known avoidable hazard in the ski
industry." The trial court, nevertheless, held as a matter of law under 12
V.S.A. { 1037 that "a wooden guide post at the corral leading to the chair
lift is an obvious and necessary risk."
This is our first opportunity to construe 12 V.S.A. { 1037. In order
to interpret this statute, we must determine its intent by analyzing not
only its language, but also its purpose, effects and consequences. See In
re R.S. Audley, Inc., 151 Vt. 513, 517, 562 A.2d 1046, 1049 (1989). The
avowed purpose for the statute was extensively set out in { 1 of the Act
(preamble):
Since 1951, the law relating to liability of operators
of ski areas in connection with downhill skiing injuries
has been perceived to be governed by the doctrine of
volenti non fit injuria as set forth in the case of
Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp. 786,
decided by the United States District Court for Vermont.
In 1976, in the case of Leopold v. Okemo Mountain, Inc.,
420 F. Supp. 781, decided also by the United States
District Court for Vermont, the doctrine of assumption of
risk was held to be applicable in a downhill skiing

injury case, despite the adoption of a comparative
negligence statute by the Vermont General Assembly in
1970. In 1977, in the case of Sunday v. Stratton
Corporation, the Superior Court for Chittenden County of
the state of Vermont ruled that the defense of
assumption of risk was inappropriate in a comparative
negligence case involving a downhill skiing injury.

It is a purpose of this act to state the policy of this
state which governs the liability of operators of ski
areas with respect to skiing injury cases, including
those resulting from both alpine and nordic skiing, by
affirming the principles of law set forth in Wright v.
Mt. Mansfield Lift, Inc., and Leopold v. Okemo Mountain,
Inc., which established that there are inherent dangers
to be accepted by skiers as a matter of law.

1977, No. 119. (Adj. Sess.), { 1 (eff. Feb. 7, 1978). Therefore, to under-
stand { 1037, we must begin by examining the common-law principles found in
the Vermont federal and state cases mentioned in the statement of purpose,
Wright, Leopold, and Sunday.
In Wright, the plaintiff broke her leg after colliding with a snow-
covered tree stump while skiing down a trail in January 1949. Relying on
the doctrine of volenti non fit injuria (one who consents cannot claim
injury), the court held that those responsible for safety at Stowe's ski
area were not liable for the accident. 96 F. Supp. at 791. The court
reasoned that, when plaintiff chose to ski, she accepted "the dangers that
inhere in [skiing] so far as they are obvious and necessary." Id.
"Obvious," in this context, does not mean something easily observed by a
skier who looked. To the contrary, the court stated the trail, at the
place of the accident, "was smooth and covered with snow. There were no
unexpected obstructions showing." Id. Rather, an obvious risk was one
inherent in the nature of the sport. In skiing, tree stumps are an obvious
risk because the trails are "areas cleared down the rough mountain side . .
. by cutting trees, by bulldozing and by other methods." Id. at 788. Tree
stumps were a "necessary" risk because the effort required to remove them
was deemed, at that time, to be an unreasonable burden. Indeed, it would be
an "impossible" demand to expect that "the terrain of a ski trail down a
mighty mountain" could reasonably be kept hazard-free. Id. at 791. Using a

directed verdict standard, on facts most favorable to the plaintiff skier,
the court held that the defendants owed no duty to protect their skiing
patrons from stumps under the snow, and, therefore, skiers were deemed to
have assumed the risk of injury skiing over the rough terrain. Id. at 790-
91.
Twenty-five years later in Leopold, a case tried to court, the ski area
was found not liable to the estate of a skier who was killed by colliding
with an unpadded ski lift tower. 420 F. Supp. at 787. The court ruled that
the tower was an obvious risk -- obvious, not in the sense that word was
used, as a term of art, in Wright, but in the sense that the plaintiff's
decedent, an experienced skier familiar with the ski area, knew that the
bright blue towers were unpadded and willingly risked colliding with a tower
if he lost control while negotiating the trail. Id. The court also
concluded that ski towers, which serve a useful purpose, were "more neces-
sary to the sport of skiing than [the] hidden tree stumps" in Wright. Id.
The court acknowledged that some risks presented by the towers -- for
example, that they were unpadded -- were not "absolutely necessary" in that
the ski area could have reduced or eliminated the risk before the accident.
Id. at 786. But the court never reached the issue of the ski area's duty to
do so, instead deciding the case on the skier's awareness of the risk. Id.
at 787.
Although Leopold paid lip service to Wright, see id. ("we rely upon
the principles of [Wright] as the basis for the conclusion reached here"),
the rationales of the two cases appear to be fundamentally incompatible.
Because { 1037's preamble purports to adopt both Wright and Leopold, we must
first see whether the two cases can be reconciled, and, if not, what

principles the legislature intended to carry forward from the two cases into
{ 1037. The key to answering both questions is Sunday v. Stratton Corp.,
136 Vt. 293, 390 A.2d 398 (1978), the third downhill skiing case, mentioned
along with Wright and Leopold, in { 1037's preamble. The preamble refers to
the trial court decision in Sunday, which was apparently the immediate
impetus for enacting { 1037; this Court did not rule on the Sunday appeal
until after { 1037 went into effect.
In Sunday, the plaintiff was injured after becoming entangled in
concealed brush while skiing on a novice trail. 136 Vt. at 297-98, 390 A.2d
at 401. The ski area moved for a directed verdict, claiming to rely on the
assumption-of-risk standard declared in Wright. Id. at 297, 299, 390 A.2d
at 400-401. The trial court denied the motion, ruling that whether the
concealed brush was an assumed risk was a disputed question of fact to be
decided by the jury. It also ruled that the plaintiff's negligence, if any,
in encountering the risk would be submitted to the jury under Vermont's
comparative negligence statute, 12 V.S.A. { 1036.
Section 1037's preamble treats the trial court ruling in Sunday as a
major departure from Wright, a signal that something had gone awry in the
law of ski-area liability. Undoubtedly, media coverage of the Sunday trial
caused alarm in the legislature that ski areas were about to be subjected to
increased liability. In our decision on the Sunday appeal, we noted that
the trial court's comments in denying the motion for a directed verdict
prompted publicity:
A resulting front page article appeared in the
Burlington Free Press, headlined "Ruling May Broaden
Liability of Ski Resorts." . . . In the middle of the
article . . . was a phrase . . . that the presiding
judge had stated "frankly" that he did not think ski
areas should be allowed to operate any longer "hiding

behind" the philosophy that ski accidents are a risk
people assume when they go skiing.

136 Vt. at 305, 390 A.2d at 404-05. During committee consideration of {
1037, a senator remarked, "If [Sunday] had not come out the way it did in
terms of [the trial judge's] ruling on assumption of risk, they [the ski
areas] would not be here today." Hearings on H. 417 before Senate
Judiciary Committee, Jan. 18, 1978, at 3 (statement of Senator David
Gibson); see Note, Assumption of Risk after Sunday v. Stratton Corporation,
3 Vt. L. Rev. 129, 130 (1978) (describing media coverage and legislative
concern).
The legislature's clear purpose then was to return the law of ski-area
liability to where it had existed prior to the Sunday trial. Unfortunately,
the legislature's task in drafting { 1037 was probably more daunting than it
realized. Wright and Leopold, the prior cases cited in the preamble, were
not facially consistent. Moreover, they were federal cases, not binding on
this Court, which had never had the opportunity to interpret them or to rule
independently on ski-area liability. Only after the passage of { 1037 did
this Court have an opportunity in the Sunday appeal to make two important
clarifications: (1) that Wright and Leopold were irreconcilable, and (2)
that the trial court's result in Sunday had been consistent with Wright (and
was affirmed as such).
Affirming the judgment for the plaintiff in Sunday, this Court
explained that there are two different concepts, both commonly labeled
"assumption of risk." 136 Vt. at 301-04, 390 A.2d at 402-04. The Supreme
Court of New Jersey succinctly summarized the two concepts:
In one sense (sometimes called its "primary" sense),
[assumption of the risk] is an alternate expression for
the proposition that defendant was not negligent, i.e.,

either owed no duty or did not breach the duty owed. In
its other sense (sometimes called "secondary"), assump-
tion of risk is an affirmative defense to an established
breach of duty.

Meistrich v. Casino Arena Attractions, Inc., 155 A.2d 90, 93 (N.J. 1959).
The rationale in Wright relied on primary assumption of risk, in Leopold on
the secondary sense, although neither decision used this terminology. The
fact that these two concepts existed and were used somewhat interchangeably
in prior ski-area liability cases has created confusion about which standard
the legislature intended to incorporate into { 1037.
In Sunday, we adopted the widely accepted primary assumption-of-risk
rule applied in Wright and explained that stating that a skier assumes
inherent dangers of a sport is no different from stating that the ski area
did not breach any duty owed to the skier. See 136 Vt. at 301, 390 A.2d at
402 ("primary" assumption of risk "is the equivalent of, and better put as,
a claim that defendant owed plaintiff no duty with respect [to the partic-
ular risk]"). Our analysis in Sunday, therefore, is consistent with
Wright. We agree with the Second Circuit that
the only difference between Wright and Sunday is in
their results, not in the principles of controlling law.
In Wright, the defendant did not breach any duty it owed
to plaintiff; in Sunday, it did. In both cases, though,
the defendant's duty -- to warn of or correct dangers
which in the exercise of reasonable prudence in the
circumstances could have been foreseen and corrected --
was the same.

Dillworth v. Gambardella, 970 F.2d 1113, 1119 (2d Cir. 1992).
Thus, in Wright, the injured skier did not personally know of,
appreciate, and consent to skiing into stumps hidden under the snow cover.
Rather, she and all skiers on the mountain were deemed to consent to all
hazards that reasonably careful trail maintenance could not eliminate.

"Deemed consent" is a legal fiction that explains the lack of a ski area's
duty to remove or warn skiers of tree stumps on a trail. The ski area in
Wright was, therefore, not at fault regardless of whether plaintiff
appreciated, and actually consented to assume, risks in the sport of skiing.
In Sunday, the ski area was held to have a duty to remove brush on the
trail, indeed the ski area's own employees and experts testified that brush
could and should have been eliminated. 136 Vt. at 298, 390 A.2d at 401.
Both cases turn on primary assumption of risk.
In contrast to both Wright and Sunday, Leopold was based on secondary
or explicit assumption of risk. There, the injured skier was not deemed to
have consented to lift-tower hazards on the basis that the ski area had done
all that was reasonably expected of it in maintaining the towers in a
reasonably safe condition. Rather, the Leopold court found that, even
assuming Okemo could have been more careful, the injured skier was
"cognizant of the dangers . . . [t]he hazard was in plain view," he "could
have chosen not to proceed[, and y]et, he chose to ski the trail" and
"willingly assumed . . . the danger that he might collide with a tower if he
lost his control or concentration for an instant." 420 F. Supp. at 787.
Haystack relies exclusively on a theory of secondary assumption of the
risk from Leopold: Frant saw the posts, which were obvious, and such posts
were a necessary part of skiing; judgment, therefore, should be for defend-
ant as a matter of law. According to Haystack, the issue of primary
assumption of risk does not arise because it has no duty to abate risks that
are obvious and necessary. Frant turns the analysis around, relying on
Wright's primary assumption of risk: whether the post construction was
necessary and its dangers obvious are questions of material fact that must

be raised before his negligence becomes an issue. As in any tort action,
urges plaintiff, the question of defendant's duty is the threshold question
to evaluating plaintiff's negligence, if any.
We agree with the parties that { 1037 can only incorporate one of these
views, and believe that the Wright/Sunday theory of primary assumption of
risk is the one that has been retained. First, the impetus for { 1037 came
from the trial court rulings in Sunday, which were based on interpretations
of Wright; Leopold was never raised. To the extent that prior ski area
liability law was threatened, Wright not Leopold was implicated. In light
of publicity surrounding the Sunday jury trial, which undoubtedly informed
the legislative debate on ski user liability, we believe { 1037's language
and preamble indicate the legislature wished to bolster the concept of
primary assumption of the risk as first announced in Wright, presumably to
dispel any perception that it had been jettisoned by the trial court in
Sunday. As it turned out, 12 V.S.A. { 1037 and the analysis in Sunday on
appeal decided after { 1037 enactment are completely consistent. Compare {
1037 (as a matter of law, one who participates in sport "accepts the dangers
that inhere therein insofar as they are obvious and necessary") with Wright,
96 F. Supp. at 791 (one who takes part in sport "accepts the dangers that
inhere in it so far as they are obvious and necessary").
Moreover, Leopold which depended on the court's findings of fact, is
unworkable as precedent for applying a directed verdict standard. The deci-
sion is also somewhat confusing because it includes language incorporating
the doctrine of primary assumption of risk and purporting to follow Wright.
But the opinion is also replete with language about how the skier in effect
knew of the risk, appreciated the extent of the dangers, and consented to

assume it, see 420 F. Supp. at 787, the classic elements of secondary
assumption of risk. See Sunday, 136 Vt. at 303, 390 A.2d at 404. Much of
the confusion was engendered because Leopold was a trial to court. Because
there was no need to charge a jury, the court simply skipped over the
threshold question of whether the ski area had a duty to the skier by
leaving ski lift towers unpadded, which was the most difficult -- and most
contested -- factual issue. Instead, it focused on another part of the
case, which it thought more soundly grounded, and found as a fact that
plaintiff had assumed the risk in the secondary sense. Leopold, 420 F. Supp. at 787. The court, in effect, decided the issues in the case
backwards, reaching the plaintiff's negligence before considering the
defendant's. This sequence would be impractical in a jury trial.
Yet, given the muddling of assumption of risk in Vermont's case law,
some question may linger whether by enacting { 1037, the legislature
intended to provide more protection from liability for ski areas than the
law of negligence and primary assumption of risk did. The drafters of {
1037 did not distinguish between primary and secondary assumption of risk,
probably believing the doctrine encompassed a single concept. For instance,
{ 1037, by its own terms, operates "[n]otwithstanding the provisions of
section 1036," that is, operates notwithstanding comparative negligence.
Comparative negligence, however, applies only when both defendant and
plaintiff are negligent. But the statute then goes on to describe primary
assumption of risk, a concept that does not address plaintiff's fault
(secondary assumption of the risk) in any way. The risk in the primary
sense may be hidden, like the one in Wright, and not subject to the skier's

reasonable perception. If defendant has no duty to guard against a risk,
plaintiff's fault in encountering the hazard is irrelevant.
Although some confusion is engendered by reading the statute against
the purpose stated in the preamble, merging secondary assumption into the
statute would lead to absurd results in more extreme cases. For example, a
skier who encountered a readily apparent barbed-wire, hard-metal post corral
may have been foolish to ski there, but we hardly think the legislature
intended to bar the injured skier's cause of action as a matter of law.
In drafting 12 V.S.A. { 1037, the legislature avoided cataloguing fact-
specific examples of "obvious and necessary" risks inhering in sports such
as skiing. The legislature thereby recognized, as Wright demonstrates, that
yesterday's necessary skiing risks tend to become, with the passage of time
and advancement of technology, reasonably avoidable. At the time Wright was
decided, skiers were forced to assume the risk of colliding with snow-
covered tree stumps, because grooming and inspection techniques in 1949 had
not evolved to where it was feasible to detect and remove, or warn skiers
about, such hazards. As Frant's expert witness suggested, state-of-the-art
technology has evolved well beyond the early stages. Even the ski industry
now concedes that today the failure to detect a tree stump could serve as
the basis for negligence "in view of improved grooming techniques." See
Sunday, 136 Vt. at 300, 390 A.2d at 402. The language of 12 V.S.A. { 1037
is broad enough to account for safety improvements in the skiing industry.
We do not think the legislature's purpose in reasonably protecting the
skiing industry is compromised by asking a jury to supply a contemporary
sense of what constitutes an obvious or necessary risk. Skiers should be

deemed to assume only those skiing risks that the skiing industry is not
reasonably required to prevent.
In this case, Frant was not given the opportunity to prove through his
expert witness that technology had evolved such that the wooden corral post
system used by defendant was no longer, if it had ever been, an "obvious and
necessary" risk. The issue of defendant's duty was effectively removed from
the case. We do not believe the legislature intended this result.
Reversed and remanded.

FOR THE COURT:

______________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. Frant subsequently died from causes unrelated to the ski accident,
and his estate was substituted as plaintiff.

-------------------------------------------------------------------------------

Concurring

No. 92-584

Estate of Martin A. Frant, Supreme Court
Roger Frant, Administrator
On Appeal from
v. Windham Superior Court

Haystack Group, Inc, et al. September Term, 1993

Arthur J. O'Dea, J.

J. Eric Anderson of Cantini, Anderson & Oakman, Manchester Center, Richard
M. Howland, Amherst, Massachusetts, and Jean M. Fielding, Greenfield,
Massachusetts, for plaintiffs-appellants

David L. Cleary and Thomas P. Aicher of David L. Cleary Associates, Rutland,
for defendants-appellees

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

ALLEN, C.J., concurring. I concur in the result because disputed
facts concerning the construction of the corral raise a challenge to its
necessity and preclude a grant of summary judgment. See Wesco, Inc. v. Hay-
Now, Inc., 159 Vt. 23, 26, 613 A.2d 207, 209 (1992) (to prevail on motion
for summary judgment, there must be no genuine issues of material fact).
Ordinarily, the question of whether a danger is obvious and necessary
within the meaning of 12 V.S.A. { 1037 should be resolved by a jury.
Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir. 1992).

_____________________________
Chief Justice

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