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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.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. David M. Cohen, U.S. Magistrate Judge]


_____________________

____________________

Before

Boudin, Circuit Judge,


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Campbell, Senior Circuit Judge,


____________________

and Lynch, Circuit Judge.


_____________

____________________

Graydon G. Stevens, with whom Kelly, Remmel & Zimmerman, Gary


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__________________________ _____
McQuesten,
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and

Valsangiacomo, DeTora & McQuesten, P.C.,


_________________________________________

briefs, for appellant.

were

Elizabeth J. Wyman, with whom Evan M. Hansen and Preti, Flaher


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_______________
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Beliveau & Pachios, were on brief, for appellee.
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____________________
March 19, 1996
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LYNCH, Circuit Judge.
LYNCH, Circuit Judge.
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Maine has

chosen to exempt

ski areas

from

from liability for actions

risks "inherent" in skiing.

488 (West

for injuries resulting

The statute, 26 M.R.S.A.

1988), does, however, permit

actually caused by the

the ski area.

actions for injuries

negligent operation or maintenance of

The question presented is whether a skier who

was injured when he fell negotiating moguls not

"breakover"1 just above suffered

risk

inherent in skiing

or from the

maintenance of the ski area.

the inherent risks

Maine has chosen to

injury as a

of skiing,

visible from

result of a

negligent operation or

We hold that this case involves

thus is

within the

afford, and affirm the entry

immunity

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

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1.

"Moguls"

They are

are bumps in the

snow surface of

a ski trail.

created by skiers carving out their turns.

common practice for ski

areas to leave all or

trail ungroomed so as to retain moguls.

It is a

portions of a

A "breakover" is the

convergence and changeover of two or more trails of differing


slope.
Our definitions
We

realize,

vocabularies

are from the

however,

that

(especially

in

district court's opinion.

with
the

changing

times

increasingly

and

technology

oriented world of downhill skiing), the meaning of words such


as

"mogul"

may

change.

Dictionary
__________

provides

definition

of the

slope

For

example,

(humorously)
term

the

The Real Skier's


__________________
following

"moguls": "bumps

"archaic"

appearing on

before the days of grooming machines."


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the

Morten Lund,

The Real Skier's Dictionary (1983) (emphasis added).


___________________________

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far.

As he approached

intersection of 3-D

slightly.

What was

width

What was

the crest

of the

and the Last Mile Trail,

beyond the

breakover was

beyond the breakover were moguls

of the trail.

the moguls, fell and

breakover at

Swenson, skiing too

was injured.

the

Swenson slowed

not visible.

across the entire

fast to negotiate

There is no

dispute that

the moguls had formed on the trail naturally, as a result

normal

skier traffic. There

River,

had it

so

desired, could

length of the trail smooth.

designed

3-D,

is also no

as the

of

dispute that Sunday

have

groomed the

entire

However, Sunday River, which had

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

judgment,

the

appeal

our review is de
__

is

novo.
____

from

F.3d

1995).

and

regard

favorably to Swenson.

the

Id.
___

record

of

summary

Commonwealth of Mass. v.
______________________

Blackstone Valley Elec. Co., 67


_____________________________

We

entry

981, 985

draw

all

(1st

Cir.

inferences

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


recreational
passenger

sport

and

the

as a

use

tramways associated

of

therewith

may be hazardous to skiers or passengers,


regardless

of

measures which can

all

feasible

be taken.

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safety

Therefore,

each

skier

shall

have

responsibility for knowing

the

sole

the range

of

his own ability to negotiate any slope or


ski trail,

and it

each skier to
limits
control
times

shall be the

conduct himself within the

of his

own ability,

of his

to heed

all posted

cause or contribute

the injury of himself


otherwise

this

at all

to refrain from acting in a

manner which may

as

to maintain

speed and course

while skiing,

warnings and

duty of

or others.

specifically

subchapter,

each

to

Except

provided

in

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
to his person or

for any

injury

property arising out of

his participation in the sport of skiing,


unless the

injury or death

caused

the

by

negligent

was actually
operation

or

by the

ski

maintenance of the

ski area

area operator, its

agents or

employees.

Except

as provided in

responsibility
skier

while

for

this section, the


collisions

actually

by

any

skiing, with

any

person or object, shall be solely that of


the

skier

or skiers

collision and not


operator.

involved

that of

in [the]

the ski

area

This section shall not prevent

the

maintenance of

an action

against a

ski

area

for

negligent

design,

operator

construction,

the

operation

or

maintenance of a tramway.

26 M.R.S.A.

488 (West 1988).

Against this

He says that Sunday

breakover

two claims.

River negligently maintained and groomed

3-D in such a manner as

below

framework, Swenson makes

to create a mogul field

where

it

was

not

visible

immediately

to

skiers

approaching it from above at expected and appropriate speeds.

He also argues

that Sunday River negligently failed

or warn of this hazard.

to mark

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Recognizing

immunized

by

F.2d

that

from liability under

this court in Finnern


_______

530, 534 (1st Cir.

issue as

negligent design

whether the

the statute2

of a

trail is

as interpreted

v. Sunday River Skiway Corp., 984


__________________________

1993), the parties

presence of

have framed the

an ungroomed

mogul field

below

blind breakover

opposed to an

issue of

gives rise

to

a design

operation or maintenance.

extent, on particular facts, the answer to

of a

ski trail is a

maintenance may

sufficiently clear in

not

matter of

degree.

some

of operation and

But

we think

this case that deciding to

groom away moguls on a

To

whether a feature

design feature or one

be a

issue as

it

retain and

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

necessary

there was

about the

nothing

moguls being

natural, inseparable

just below

the

or

breakover and

thus

their

presence

While the sudden

natural,

Sunday

Swenson

River's

there was

not an

appearance of

argues

inherent risk

moguls on a

that these

decision not

legally viable distinction.

of skiing.

trail might

be

moguls

resulted

from

and

that this

is a

to groom

The very fact

that some choice

____________________

2.

The

statute

expressly

negligent design of a tramway

permits

suits

arising

but not of a ski trail.

suit does not involve a tramway accident.

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out

of
This

was made, he says, entitles him to

get to a jury.

that the

argument misperceives the legislative

trail on

which he

trail

and

the location

cannot be separated

River.

was injured

think

intent.

to be

even

The

a mogul

if shifting,

made by Sunday

Moguls are inherently risky for skiers -- that may be

inseparable

14 (Cal. 1992) (in

inseparable

lured by mogul trails.

characteristic

inherent risk of skiing.

2d 2,

the moguls,

from the design decision

precisely why skiers are

an

of

was designed

We

of

the

3-D

Moguls are

trail

and

an

Cf. Knight v. Jewett, 11 Cal. Rptr.


___ ______
______

banc) (risk posed by

part of the sport);

moguls is an

O'Donoghue v. Bear Mountain


__________
_____________

Ski Resort,
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35 Cal. Rptr.

2d 467, 469 (Cal.

Ct. App. 1994)

(same).

Swenson's argument that Sunday

warn of the

existence of

River had a duty to

moguls below a

breakover must

be

weighed in light of the statute's express admonition that "it

[is] the duty

limits

of his

speed . . . at

of each

own

skier to conduct

ability,

to

himself within

maintain

all times while skiing

. . .

from acting in a manner which may cause

injury

The

control

of

the

his

and to refrain

or contribute to the

of himself or others." 26 M.R.S.A.

488 (West 1988).

convergence of two trails at a breakover with no forward

visibility

requires

appropriately.

While

a skier

skiing

to

adjust

at GS

his or

speeds

her

on the

speed

upper,

mogul-free

portion

of

the

trail, where

there

was

clear

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visibility, may have been

the

speed at

inappropriate.

appropriate, it is undisputed that

which Swenson

There was,

skied

at the

below the

very

breakover was

least, a

risk of

another skier on the other side of the breakover, a risk this

court described

If

as "inherent" in

Finnern, 984 F.2d


_______

be presumed

to have

Swenson could

risk,

there seems

could not be

by law

no principled

presumed to

basis for

have assumed the

unextraordinary unseen hazards in

at 537.

assumed that

saying

risk that

that he

other

the nature of moguls might

be present beyond the crest.

Swenson's

speed

and style

mogul field

could not

speed.

could

own expert

made it

he encountered

have negotiated

testified that

impossible for

and

that even

the mogul

him to

Swenson's GS

handle the

an expert

field at

skier

Swenson's GS

Swenson testified that had he been skiing slower, he

have

handled

the

combined with the lack of

moguls.

The

breakover

visibility, put Swenson on

itself,

notice

that there might be

moguls (or other comparable hazards)

--

the presence of which clearly are inherent risks of skiing --

just

risks

below.

The breakover

below that

required

placed the responsibility of

Swenson.

provided

Swenson to

a natural

slow.

warning of

The

statute

guarding against those risks on

Under the circumstances, there was no duty to warn.

-88

Affirmed.
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-99

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