Opinion
No. COA11–1075.
2012-04-3
Julie HALTIWANGER, Plaintiff v. PHOENIX SKI CORPORATION, d/b/a, Cataloochee Ski Area, Defendant.
The Exum Law Office, by Mary March Exum and Law Office of Todd Ellis, P.A., by Todd R. Ellis, for plaintiff-appellant. Roberts & Stevens, P.A., by Wyatt S. Stevens and Ann–Patton Hornthal, for defendant-appellee.
Appeal by plaintiff from order entered 27 May 2011 by Judge Gary Gavenus in Haywood County Superior Court. Heard in the Court of Appeals 23 January 2012. The Exum Law Office, by Mary March Exum and Law Office of Todd Ellis, P.A., by Todd R. Ellis, for plaintiff-appellant. Roberts & Stevens, P.A., by Wyatt S. Stevens and Ann–Patton Hornthal, for defendant-appellee.
CALABRIA, Judge.
Julie Haltiwanger (“plaintiff”) appeals from an order granting summary judgment in favor of Phoenix Ski Corporation d/b/a Cataloochee Ski Area (“defendant”). We affirm.
I. Background
At approximately 4:45 p.m. on Saturday, 13 February 2010, plaintiff was skiing at defendant's resort when she collided with a snowboarder, Luis Venegas (“Venegas”). Since 1985, plaintiff skied for one day almost every year, had never taken formal ski lessons, and considered her skill level intermediate. Although she and her family typically skied in North Carolina, she had never skied at defendant's ski resort prior to the accident. As a result of the accident, plaintiff sustained injuries requiring medical care and treatment.
Venegas was employed as a lift operator at defendant's resort. One of the benefits defendant offered its employees was complimentary skiing when they were off duty. At the time of the accident, Venegas was off duty.
On 16 August 2010, plaintiff filed an amended complaint against defendant only and sought damages for defendant's negligence. Plaintiff alleges defendant owed her a duty of protection and had a duty to train and supervise its employees. Defendant answered the complaint and alleged the affirmative defenses of contributory negligence and assumption of the risk, since plaintiff's lift ticket included a specific warning and an assumption of risk notice as a condition of skiing at defendant's resort.
Defendant moved for summary judgment on 29 April 2011. On 27 May 2011, the trial court granted defendant's motion for summary judgment. Plaintiff appeals.
II. Standard of Review
The standard of review for an appeal from summary judgment is de novo. Hewett v. Weisser, 201 N.C.App. 425, 427, 689 S.E.2d 408, 410 (2009). Summary judgment is “based on two underlying questions of law: (1) whether there is a genuine issue of material fact and (2) whether the moving party is entitled to judgment” as a matter of law. Id. at 427, 689 S.E.2d at 409–10.
Plaintiff's claims against defendant were each based upon plaintiff's alleged negligence. To recover damages for negligence a plaintiff must show that each element of negligence is present: “legal duty or obligation, breach of that duty, proximate cause and actual loss or damage.” Little v. Omega Meats I, Inc., 171 N.C.App. 583, 586, 615 S.E.2d 45, 48,aff'd,360 N.C. 164, 622 S.E.2d 494 (2005) (citation omitted).
III. Premises Liability
Plaintiff argues that the trial court erred in granting summary judgment to defendant because there was a genuine issue of material fact as to whether defendant was negligent in creating or failing to cure an unreasonably dangerous condition. We disagree.
In general, a landowner owes a duty of “reasonable care toward all lawful visitors.” Nelson v. Freeland, 349 N.C. 615, 631, 507 S.E.2d 882, 892 (1998). To prevail on a claim for negligence in a premises liability action, a plaintiff must prove that the owner either negligently created a hidden peril or otherwise unsafe condition or that the owner negligently failed to correct the unsafe condition after actual or constructive knowledge of its existence. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 343 (1992).
However, we note that defendant is a ski area operator. North Carolina's Skier Safety Act (“Act”) has modified the traditional premises liability duty of care owed to skiers by ski area operators. N.C. Gen.Stat. § 99C–2 (2011). The Act outlines the specific responsibilities for ski area operators, including:
(4) To post at or near the top of or entrance to, any designated slope or trail, signs giving reasonable notice of unusual conditions on the slope or trail;
(6) To mark clearly any hidden rock, hidden stump, or any other hidden hazard known by the ski area operator to exist;
(7) Not to engage willfully or negligently in any type conduct that contributes to or causes injury to another person or his properties.
N.C. Gen.Stat. § 99C–2(c) (2011).
In the instant case, there is no dispute that plaintiff sustained injuries requiring medical care and treatment. The issue is whether plaintiff's injuries resulted from a breach of defendant's duty of care owed to skiers who used its slopes.
Plaintiff contends that the area where the accident occurred was dangerous, thereby triggering defendant's duty to plaintiff. Plaintiff supports her argument with two pieces of evidence. First, plaintiff relies on the deposition testimony of Chris Hill (“Hill”), a volunteer ski patroller. Hill indicated that there was a spot on the Upper Turkey Trot where the slope levels off a bit and skiers would rest. Second, plaintiff cites the incident report completed by Venegas. However, plaintiff only included this incident report as an appendix to her brief; it was not included in the record on appeal. Consequently, we will not consider this report. See N.C. Concrete Finishers, Inc. v. N.C. Farm Bureau Mut. Ins. Co., 202 N.C.App. 334, 337–38, 688 S.E.2d 534, 536 (2010) (Items included as an appendix to a brief are not part of the record on appeal and will not be considered by this Court).
Hill's testimony, that the Upper Turkey Trot contains a “dip” that levels off and where skiers rest, fails to establish that this “dip” constituted a hidden or dangerous condition. Variations in terrain are common on ski slopes, and skiers are statutorily required to be aware of these variations when skiing. SeeN.C. Gen.Stat. § 99C–2 (b)(2) (2011)(Skiers are required to inter alia, “maintain a proper lookout so as to be able to avoid other skiers and obvious hazards and inherent risks, including variations in terrain ....”). Furthermore, defendant does statistical analysis of the locations of incidents and a study of more than 300 incidents on the mountain during the prior year was considered at the summary judgment hearing. Hill and Chris Bates (“Bates”), the general manager of defendant's resort, both indicated that the Upper Turkey Trot slope is not an area where accidents usually occur.
Thus, plaintiff's evidence of a change in terrain on the Upper Turkey Trot is not sufficient, standing alone, to demonstrate a dangerous condition or “hidden hazard.” Defendant's duty to plaintiff did not extend beyond its responsibility for marking such “hidden hazard[s].” N.C. Gen.Stat. § 99C–2 (c)(6) (2011). Therefore, plaintiff failed to forecast evidence that defendant breached its duty of care to plaintiff. Since there was no breach of duty, the trial court did not err in granting defendant's motion for summary judgment. This argument is overruled.
IV. Respondeat Superior
Plaintiff argues that the trial court erred in granting summary judgment to defendant because there was a genuine issue of material fact as to whether defendant was liable for Venegas's acts under a theory of respondeat superior.
Under the doctrine of respondeat superior, “employers are liable for torts committed by their employees who are acting within the scope of their employment.” Matthews v. Food Lion, LLC, 205 N.C.App. 279, 281, 695 S.E.2d 828, 830 (2010). However, it is “elementary that the master is not responsible if the negligence of the servant which caused the injury occurred while the servant was engaged in some private matter of his own or outside the legitimate scope of his employment.” Estes v. Comstock Homebuilding Companies, Inc., 195 N.C.App. 536, 540, 673 S.E.2d 399, 402 (2009) (citation omitted).
In Estes, the defendant's employee was outside smoking a cigarette when the telephone began to ring. Id. at 538, 673 S.E .2d at 401. The employee hastily put out her cigarette and ran inside. Id. The cigarette started a fire which damaged the plaintiff's house. Id. at 537–38, 673 S.E.2d at 400–01. The Court held that the doctrine of respondeat superior applied, even though the employee was outside smoking, because “(1) [the employee] was on the premises of her employer where she was required to be, able and willing to perform her duties; and (2) the negligence occurred when she went to perform one of those duties, answering the telephone.” Id. at 541, 673 S.E.2d at 402.
In Matthews, the defendant's employee entered a bathroom on the defendant's premises after she had clocked out of work. 205 N.C.App. at 280, 695 S.E.2d at 829. The employee entered the bathroom “at a brisk pace” and injured the plaintiff. Id. Noting that “the evidence establishe[d] that Defendant has no control over the actions of its employees once they have ‘clocked out’ of work” and that defendant's employee “was not on duty, was not required to be on the premises at the time of the incident, and was not going to the bathroom in furtherance of Defendant's business,” this Court concluded that the defendant's employee “was not acting within the scope of her employment at the time of the incident” and thus the doctrine of respondeat superior did not apply. Id. at 283–84, 695 S.E.2d at 831–32.
The instant case is analogous to Matthews rather than Estes . Plaintiff's forecasted evidence showed that although Venegas had been working for defendant on the day of the accident, he had completely finished performing his duties for the day when the accident occurred. While defendant had a policy allowing its employees to ski on the premises from Sunday–Friday (non-holidays) and nights, its employees were not required to utilize this policy. At the time of the accident, Venegas was off duty, not required to be on defendant's premises, and not under defendant's control. When he was skiing under these circumstances, his status was the same as any other individual enjoying the use of the slopes.
Furthermore, plaintiff has not provided any evidence to show how Venegas's actions could be considered in furtherance of defendant's business. Venegas was a ski lift operator. Skiing was neither required nor necessary as part of his job. There is no evidence that Venegas's recreational snowboarding, after he had completed his shift, furthered defendant's business in any way. Venegas's actions were clearly “some private matter of his own or outside the legitimate scope of his employment.” See Estes, 195 N.C.App. at 540, 673 S.E.2d at 402 (citations omitted). Therefore, we find the doctrine of respondeat superior does not apply in the instant case. See Matthews, 205 N.C.App. at 283–84, 695 S.E.2d at 831–32. This argument is overruled.
V. Failure to Orient, Train and/or Supervise
Plaintiff also argues that defendant was negligent in failing to orient, train and/or supervise Venegas. We disagree.
In her brief, plaintiff fails to cite to any authority to support this argument. Instead, plaintiff “incorporates herein by reference her Argument from Section (C)(2) of [her] Brief.” However, plaintiff's brief does not actually contain a section (C)(2), and the remainder of the brief does not include any law which would support this argument. As a result, we deem this argument abandoned pursuant to N.C.R.App. P. 28(b)(6) (2011).
VI. Negligent Entrustment
Plaintiff also contends there was a genuine issue of material fact as to whether defendant negligently entrusted Venegas with equipment. However, plaintiff failed to raise this claim in her amended complaint. Therefore, it is inappropriate for us to consider the issue on appeal. See Higgins v. Simmons, 324 N.C. 100, 103, 376 S.E.2d 449, 452 (1989) (a party cannot raise an issue for the first time on appeal). This argument is overruled.
VII. Conclusion
While we agree this is an unfortunate accident, plaintiff has failed to forecast any genuine issue of material fact or any evidence showing that defendant was negligent. Defendant is entitled to judgment as a matter of law. The trial court did not err by granting summary judgment to defendant. We affirm.
Affirmed. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).