Professional Documents
Culture Documents
No. 95-2273
JOEL W. SWENSON,
Plaintiff, Appellant,
v.
Defendant, Appellee.
____________________
____________________
Before
____________________
and
were
____________________
March 19, 1996
____________________
LYNCH, Circuit Judge.
LYNCH, Circuit Judge.
______________
Maine has
chosen to exempt
ski areas
from
488 (West
risk
inherent in skiing
or from the
injury as a
of skiing,
visible from
result of a
negligent operation or
thus is
within the
immunity
of summary
A skier
experience, Joel W.
1993
before skiing
the
"3-D," an
intermediate trail.
He
slalom
(GS) speed.
The
____________________
1.
"Moguls"
They are
snow surface of
a ski trail.
It is a
portions of a
A "breakover" is the
realize,
vocabularies
however,
that
(especially
in
with
the
changing
times
increasingly
and
technology
"mogul"
may
change.
Dictionary
__________
provides
definition
of the
slope
For
example,
(humorously)
term
the
"moguls": "bumps
"archaic"
appearing on
the
Morten Lund,
-33
far.
As he approached
intersection of 3-D
slightly.
What was
width
What was
the crest
of the
beyond the
breakover was
of the trail.
breakover at
was injured.
the
Swenson slowed
not visible.
fast to negotiate
There is no
dispute that
normal
River,
had it
so
desired, could
designed
3-D,
is also no
as the
of
have
groomed the
entire
name implies,
to
be a
mogul trail,
not to
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.
______________________
We
entry
981, 985
draw
all
(1st
Cir.
inferences
is expressed in the
sport
and
the
as a
use
tramways associated
of
therewith
of
all
feasible
be taken.
-44
safety
Therefore,
each
skier
shall
have
the
sole
the range
of
and it
each skier to
limits
control
times
shall be the
of his
own ability,
of his
to heed
all posted
cause or contribute
this
at all
as
to maintain
while skiing,
warnings and
duty of
or others.
specifically
subchapter,
each
to
Except
provided
in
skier
who
for any
injury
injury or death
caused
the
by
negligent
was actually
operation
or
by the
ski
maintenance of the
ski area
agents or
employees.
Except
as provided in
responsibility
skier
while
for
actually
by
any
skiing, with
any
skier
or skiers
involved
that of
in [the]
the ski
area
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.
Against this
breakover
two claims.
below
where
it
was
not
visible
immediately
to
skiers
He also argues
to mark
-55
Recognizing
immunized
by
F.2d
that
issue as
negligent design
whether the
the statute2
of a
trail is
as interpreted
presence of
an ungroomed
mogul field
below
blind breakover
opposed to an
issue of
gives rise
to
a design
operation or maintenance.
of a
ski trail is a
maintenance may
sufficiently clear in
not
matter of
degree.
some
of operation and
But
we think
To
whether a feature
be a
issue as
it
retain and
Swenson
argues that
the term
"design" should
be
He argues
that
necessary
there was
about the
nothing
moguls being
natural, inseparable
just below
the
or
breakover and
thus
their
presence
natural,
Sunday
Swenson
River's
there was
not an
appearance of
argues
inherent risk
moguls on a
that these
decision not
of skiing.
trail might
be
moguls
resulted
from
and
that this
is a
to groom
____________________
2.
The
statute
expressly
permits
suits
arising
-66
out
of
This
get to a jury.
that the
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
inseparable
inseparable
characteristic
2d 2,
the moguls,
an
of
was designed
We
of
the
3-D
Moguls are
trail
and
an
moguls is an
Ski Resort,
__________
35 Cal. Rptr.
(same).
warn of the
existence of
moguls below a
breakover must
be
limits
of his
speed . . . at
of each
own
skier to conduct
ability,
to
himself within
maintain
. . .
injury
The
control
of
the
his
and to refrain
or contribute to the
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
-77
the
speed at
inappropriate.
which Swenson
There was,
skied
at the
below the
very
breakover was
least, a
risk of
court described
If
as "inherent" in
be presumed
to have
Swenson could
risk,
there seems
could not be
by law
no principled
presumed to
basis for
at 537.
assumed that
saying
risk that
that he
other
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
have
handled
the
moguls.
The
breakover
itself,
notice
--
just
risks
below.
The breakover
below that
required
Swenson.
provided
Swenson to
a natural
slow.
warning of
The
statute
-88
Affirmed.
________
-99