O'Connell v. Killington, Ltd.

OCONNELL_V_KILLINGTON.93-394; 164 Vt 73; 665 A.2d 39

[Filed 4-Aug-1995]

  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. 93-394


Mary Ryan O'Connell                               Supreme Court

                                                  On Appeal from
    v.                                            Rutland Superior Court

Killington, Ltd.                                  January Term, 1995



Richard W. Norton, J.

Thomas M. French, Brattleboro, for plaintiff-appellee

Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd., Rutland, 
for defendant-appellant


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


       DOOLEY, J.   Defendant ski area, Killington Ltd., appeals from a
  negligence judgment against it based on defendant's failure to identify an
  unknown skier with whom plaintiff, Mary Ryan O'Connell, collided while
  skiing.  On appeal, defendant claims that it owed no duty to plaintiff to
  identify the other skier, that plaintiff's claim is barred because the jury
  found that the accident resulted from an inherent risk of skiing, and that
  the court made errors in its charge to the jury.  We reverse.

       On January 12, 1990, plaintiff was skiing one of defendant's most
  difficult trails.  She stopped to rest at the edge of the trail and was
  struck by another skier who lost control on the ice at the center of the
  trail.  One of defendant's ski patrollers, along with plaintiff's sister,
  arrived at the scene shortly after the collision.  Plaintiff requested that
  they obtain the name of the other skier.  While the ski patroller was
  occupied with evaluating and stabilizing plaintiff's injury, plaintiff's
  sister spoke to the other skier, and requested that he follow plaintiff to
  the patrol station and identify himself.  The skier failed to arrive at the
  patrol station as requested,

 

  and has never been identified.  Plaintiff's injuries proved serious,
  and she and her husband filed suit against defendant in Rutland Superior
  Court, complaining that defendant negligently (1) failed to warn of the icy
  conditions on the trail, (2) failed to close the trail because of its
  dangerous condition and (3) failed to obtain the identity of the skier who
  had collided with plaintiff.  Defendant denied those allegations and
  alleged that plaintiff's injuries were the consequence of her assumption of
  the inherent risks of skiing.

       The trial court denied defendant's motion for directed verdict, both
  at the close of plaintiff's case and at the close of the evidence.  The
  court submitted the failure-to-warn and the failure-to-identify counts to
  the jury.  In its instructions to the jury on the failure-to-identify
  count, the court stated that the jury could find that defendant had assumed
  the duty to identify skiers involved in accidents based on its employee
  manual.  This manual instructed defendant's employees to investigate
  thoroughly all accidents and to obtain the identity of everyone involved.
  The court instructed the jury that, to decide defendant's negligence on
  this count, it need determine only whether defendant had an opportunity to
  identify the other skier involved in the accident.

       Based on the instructions, the jury found for defendant on the
  failure-to-warn count and on the failure to close the trail because it
  found that the accident resulted from an inherent risk of the sport of
  skiing.  It further found that defendant had negligently failed to obtain
  the identity of the other skier and that its negligence was the proximate
  cause of the loss of plaintiff's "right to compensation" from that skier
  for her injuries.  The jury awarded plaintiff $71,108.69 in damages, and
  the trial court denied defendant's motions for judgment notwithstanding the
  verdict and for a new trial.

       Defendant raises three issues on appeal: (1) whether defendant had a
  duty to plaintiff to obtain the identity of the other skier who collided
  with her; (2) whether plaintiff's failure-to- identify claim is precluded
  by the jury's finding that the accident and injury were a result of one or
  more inherent risks in the sport of skiing; and (3) whether certain
  instructions to the jury
  
 

  were proper.  We agree with defendant's position on the first issue
  and, therefore, reverse. Because the case must be dismissed, we do not
  reach the second and third issues.

       Defendant first claims that it owed plaintiff no duty to obtain the
  identity of the other skier, and that, accordingly, the trial court erred
  by instructing the jury that could find that defendant's employee manual
  created such a duty.  We agree.

       In deciding this question, we first note that although the Vermont
  Legislature has passed a statute governing liability vis-a-vis the
  obtaining of names of skiers involved in a collision, see 12 V.S.A. §
  1038(b)(2), this accident preceded the effective date of the statute so
  that it does not apply to this case.  In any event, we conclude that the
  result in this case is the same under either the common law or the
  statute.(FN1)

       Common-law negligence requires that there be a legal duty owed by
  defendant to plaintiff, breach of that duty, that such breach be the
  proximate cause of plaintiff's harm, and that plaintiff have suffered
  actual loss or damage.  See Langle v. Kurkul, 146 Vt. 513, 517, 510 A.2d 1301, 1304 (1986).   Clearly, the first of these elements, duty, is central
  to a negligence claim, and its existence is primarily a question of law. 
  Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499
  (1993).  The imposition of a duty is "`an expression of the sum total of
  those considerations of policy which lead the law to say that the plaintiff
  is entitled to protection.'"  Id. (quoting W. Prosser & W. Keeton, The Law
  of Torts § 53, at 358 (5th ed. 1984)).

 

       Plaintiff's theory is that defendant had a duty to obtain the name of
  the skier who collided with her so plaintiff could sue that skier for her
  damages caused by the collision.  Under plaintiff's theory, this duty
  arises, first and foremost, because plaintiff's injury occurred on
  defendant's land, held open to the public for skiing.  See Restatement
  (Second) of Torts § 314A(3) (1965).

       In Langle, through the discussion of decisions from other states, we
  identified a number of factors to consider in determining whether a duty
  exits.  See Langle, 146 Vt. at 519-20, 510 A.2d  at 1304-05.  These factors
  may include the degree of certainty that plaintiff suffered injury, the
  closeness of the connection between defendant's conduct and plaintiff's
  injury, the moral blame attached to defendant's conduct, the policy of
  preventing future harm, the burden to the defendant, the consequences to
  the community of finding a duty, and the availability and cost of
  insurance.  Id. We think that an additional factor is more significant here
  -- that is, that plaintiff seeks a duty to prevent purely economic loss. 
  Negligence law does not generally recognize a duty to exercise reasonable
  care to avoid intangible economic loss to another unless one's conduct has
  inflicted some accompanying physical harm.  See Prosser & Keeton, supra, §
  92, at 657; Breslauer v. Fayston School Dist., No. 93-256, slip op. at 5
  (Vt. Mar. 24, 1995).  Thus, a possessor of land open to the general public
  has a duty to aid and protect a member of the public coming on the land
  against unreasonable risk of "physical harm" only.  Restatement (Second) of
  Torts § 314A(1)(a), (3).  Physical harm does not include economic loss. 
  See Breslauer, slip op. at 4-5; Restatement (Second) of Torts § 7(3).

       Our review of the decisions from other jurisdictions indicates that,
  absent a special relationship or undertaking, there is no duty to protect
  another's litigation interest.  For example, there is no duty to preserve
  possible evidence for another party to assist that party in future
  litigation against a third party.  See Edwards v. Louisville Ladder Co.,
  796 F. Supp. 966, 969 (W.D. La. 1992); Murphy v. Target Products Co., 580 N.E.2d 687, 689 (Ind. Ct. App. 1991); Koplin v. Rosel Well Perforators,
  Inc., 734 P.2d 1177, 1179 (Kan. 1987).   A municipal police
  
 

  force has no duty to investigate motor vehicle accidents to identify
  possible tortfeasors.  See Jackson v. Heymann, 314 A.2d 82, 85 (N.J. Super.
  Ct. Law Div. 1973); Caldwell v. City of Philadelphia, 517 A.2d 1296, 1303
  (Pa. Super. Ct. 1986).  Similarly, a taxicab company owes no duty to an
  injured passenger to identify the operator of the vehicle which caused the
  accident and injured the passenger.  See Stupka v. Peoples Cab Co., 264 A.2d 373, 374 (Pa. 1970).  An exception to this rule may exist when there
  is some special relationship or duty arising from contract, statute or
  other special circumstance.  See Bondu v. Gurvich, 473 So. 2d 1307, 1313
  (Fla. Dist. Ct. App. 1984) (claim against defendant hospital for
  destruction of evidence permitted because hospital had statutory duty to
  maintain medical records);  Koplin, 734 P.2d  at 1179.

       This general principle has been applied to circumstances identical to
  those present here. Two reported decisions have concluded that a ski area
  has no duty to obtain the identity of a negligent skier who collides with
  and injures the another skier.  See Northcutt v. Sun Valley Co., 787 P.2d 1159, 1164 (Idaho 1990);  Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59-60 (Minn. Ct. App. 1989).  Based on its prediction of our
  negligence law, the United States District Court for the District of
  Vermont determined that a ski area has no duty to identify the negligent
  skier.  See Emil v. Sherburne Corp., No. 80-22, slip op. at 2-3 (D. Vt.
  July 8, 1980).  We agree with that court that the landowner's duty does not
  extend to "assisting the prosecution of claims arising from . . . torts" of
  thirdparties also using the land.  Id. at 3.

       We adopt the reasoning of the above decisions and conclude that no
  duty exists in these circumstances.  Although our primary reason is the
  economic nature of the interest plaintiff asserts, other factors also point
  to the absence of a duty here.  The main concern of defendant's ski patrol
  employees is and should be to give emergency medical assistance, remove the
  injured skier safely from the mountain side, and obtain necessary medical
  care.  We are reluctant to dilute these critical, emergency duties with a
  responsibility to pursue and identify another skier. See Caldwell, 517 A.2d 
  at 1301 (police duty at accident scene was to ensure victim's physical

 

  well-being in expediting her trip to the hospital, not to protect the
  financial interests of the plaintiff).

       Moreover, even if the ski area had a duty to identify, it would have
  only a limited ability to enforce that duty against an uncooperative skier. 
  This suggests that any recognition of a duty should come from the
  Legislature, which can provide the ski area the means to discharge the
  duty.  In fact, the Legislature has provided, as of 1994, that a skier
  involved in a collision has the responsibility "to provide his or her name
  and local and permanent address to the other parties to the collision," but
  has also made clear that the ski area has no duty to obtain that
  identification.  12 V.S.A. § 1038(b).

       Finally, we consider plaintiff's argument that there is a special
  circumstance present in this case that creates a duty.  Plaintiff relies
  primarily on defendant's employee manual that establishes procedures in
  case of ski accidents.  These procedures include completing an accident
  reporting form, obtaining names and addresses of witnesses to the accident,
  obtaining witness statements and recording observations at the accident
  scene.  Plaintiff argues that these provisions amount to the voluntary
  assumption of a duty to investigate accidents, particularly skier
  collisions.  See Restatement (Second) of Torts § 323 (one who gratuitously
  undertakes "to render services to another which he should recognize as
  necessary for the protection of the other's person or things is subject to
  liability" for "physical harm" resulting from negligent performance of
  undertaking).

       Although we agree that defendant could voluntarily assume the duty to
  investigate accidents on behalf of injured skiers, we do not believe that
  the manual provisions show the assumption of this responsibility.  The
  manual makes clear that the investigatory responsibilities placed on
  employees are for the protection of defendant with respect to suits against
  it.  There is nothing to indicate that they were assumed as duties to third
  parties.

       This exact claim was made and rejected in Northcutt v. Sun Valley Co.,
  787 P.2d  at 1164.  The court held that imposing such requirements on
  employees did not create a duty to

 

  skiers to act on the skiers' behalf.  This holding is consistent with
  our decisions in similar circumstances.  In Smith v. Day, 148 Vt. 595, 538 A.2d 157 (1987), engineers on a railway train sued Norwich University when
  a university student shot at the train and injured them.  We concluded
  that, although defendant sought to control its students via the imposition
  of numerous rules and regulations, it did not assume a duty to third
  persons to control the volitional criminal acts of the students.  Id. at
  598, 538 A.2d  at 159.  More recently, in Larocque v. State Farm Ins. Co., 6
  Vt. Law Week 44, 44 (1995), we concluded that a liability insurer's
  employee manual, while directing employees to investigate claims in an
  efficient and cooperative manner, did not create any duty to a particular
  claimant to process the claim in good faith and consistent with the manual. 
  Citing Smith, 148 Vt. at 598, 538 A.2d  at 158-59, we stated that conducting
  one's "business in a way that [is] responsive to third-party claimants does
  not create a legally enforceable duty to do so with respect to a particular
  claimant."  Id.  To the extent defendant's policy intended that its
  employees identify colliding skiers to aid in litigation between them, we
  believe that the rationale of Larocque is controlling and prevents use of
  defendant's manual to create a negligence duty.(FN2)

       In adopting this position, we are necessarily rejecting the suggestion
  that the jury could decide whether the manual creates a duty to investigate
  and identify the other skier.  The trial court's supplemental charge to the
  jury appears to have adopted this approach.  As we indicated earlier, the
  existence of a duty is primarily a question of law.  See Denis Bail Bonds,
  Inc., 159 Vt. at 487, 622 A.2d  at 499.  Although the proper meaning of the
  employee manual may have

 

  been a question of fact for the jury, if a duty were present under
  some construction of the manual, the threshold question of whether the
  manual, however construed, could give rise to a duty was for the court. 
  See Smith v. Day, 148 Vt. at 598 n.3, 538 A.2d  at 159 n.3.

       Reversed.


                                        FOR THE COURT:



                                        _____________________________
                                        Associate Justice




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                             Footnotes

FN1.  V.S.A. § 1038(b), effective June 21, 1994, provides, in part:

       (b) Collision at a ski area

   (1) Any person who is involved in a collision with a skier at a ski
  area which results in bodily injury to any party to the collision has a
  duty to provide his or her name and local and permanent address to the
  other parties to the collision and shall proceed to the ski area first aid
  facility and provide that information to the ski area first aid personnel.

  (2) No ski area, its employees or agents shall be held responsible for
  ensuring compliance with these duties by any person, nor shall it be liable
  in any way for a failure to obtain such person's name or address.


FN2.    Plaintiff relies upon a Colorado trial court decision that
  denied a ski area summary judgment in a failure-to-identify case similar to
  that here.  Burgener v. Keystone Arapahoe Ltd. Partnership, No. 90 CV 215,
  slip op. at 3 (Colo. Dist. Ct., Summit County Sept. 5, 1991).  In that
  case, the plaintiff argued successfully that the defendant assumed the
  responsibility to investigate in certain publications and materials that
  were distributed to the public, including the plaintiff.  These were read
  and relied upon by the plaintiff's husband, who skied with her.  This case
  has none of the public promotional and reliance elements of Burgener and is
  distinguishable on that basis.