Opinion
1:98cv231-T
May 14, 1999
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendant Sugar Mountain Resort, Inc.'s (hereinafter "defendant") Motion for Summary Judgment. Having carefully considered that motion, reviewed the pleadings and conducted a hearing, the undersigned enters the following findings, conclusions, and recommendation that this matter be placed on the next available trial calendar.
FINDINGS AND CONCLUSIONS
I. Background
On November 24, 1995, plaintiff Keith Poole fell while night skung at Sugar Mountain. He classifies himself as an "advanced skier" and states that he skies about eight times a year. On the date in question, he was participating in night skung. As he approached the ski lodge on the easiest part of the slope, he fell and injured his left ankle. The injury required surgery the following day and five days of hospitalization. The day after the fall, he had his wife (plaintiff Karen Poole) visit the ski resort to take a picture of the bare spot he now contends caused his fall. At the time of the accident, a ski patrol occurrence report was filled out indicating that Keith Poole had hit an icy spot or other routime and usual hazard. Plaintiffs have presented evidence that Keith Poole's signature on that report was forged. The emergency room admission form indicates that Keith Poole said he hit an icy patch, and plaintiffs dispute the authenticity of that report. While a general waiver of liability appears on the back of the lift ticket issued by defendant to Keith Poole, it is defendant's contention that it is entitled to summary judgment because plaintiffs can only "assume" that a bare spot caused Keith's fall and that, in any event, defendant had no duty to either (1) mark and warn of the bare spot because it was not a "hidden hazard" or (2) patch the spot with snow.
II. Summary Judgment Standard Generally
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving [sic] party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986). By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the non moving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendant's Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Discussion
At this point in the proceedings, it is difficult to know whether plaintiffs are telling the truth about what happened. Such is the nature of a lawsuit. Inasmuch as plaintiff Keith Poole's claim is one for negligence under state law (Karen Poole's claim is for loss of consortium), the court's focus will turn to what duty defendant owed to Keith Poole on November 25, 1995. Because this is a ski case, the court will first look to the statutory duty of a ski operator and then to defendant's common-law duty.
Under North Carolina law, a ski operator has the duty "to post signs giving reasonable notice of unusual conditions on the slopes" (N.C. Gen. Stat. 99C-2(c)(4)) and "to mark clearly . . . any other hidden hazard "(N.C. Gen. Stat. 99C-2(c)(6)). The existence of bare, grassy spots on a ski slope in North Carolina before Thanksgiving is not an "unusual condition" and cannot, with any degree of reason, be called a "hidden hazard" regardless of whether or not it is within the "open ski area." If the law were to be read to require the posting of signs before every grassy spot on a ski slope, Sugar Mountain would more resemble a giant slalom course than a recreational ski resort.
Instead, the court believes that the duty in these circumstances is found in the common law of North Carolina, which requires landowners to "exercise reasonable care in the maintenance of their premises for the protection of lawful visitors." Nelson v. Freeland, 507 S.E.2d 882, 892 (N.C. 1998). The elements of common law negligence are duty, breach of duty, proximate cause, and damages. Estate of Muhis by Dixon v. Monroe Oil Co., Inc, 505 S.E.2d 131, 135 (N.C. 1998). While no cases indicate that a ski operator has a duty to either repair grassy spots or post signs to warn of such hazards, the deposition of Gunther Jochl, general manager of Sugar Mountain Ski Resort, Inc., has given this court some pause. In response to questioning by plaintiffs' counsel, Mr. Jochl testified, as follows:
Q. Could you tell us what size [bare spot] would be considered by you a hazard?
A. . . . a spot that you cannot safely cross anymore
Q. In the snow grooming operations, would it be standard of care to cover bare spots with snow?
A. Absolutely.
Q. And assuming that the area depicted in Photograph 1 of Exhibit 5 was in the open ski area, would it be within the standard of care to cover that area?
A. Yes, it would.
Jochl Deposition, at 29-30. Clearly, Mr. Jochl backpedals from such position later in his deposition; however, plaintiffs have presented this court with what appears to be a standard of care for the grooming of ski slopes ii the industry and evidence, to wit, a photograph and plaintiffs' own testimony, that it was not followed by covering the bare spot in question.
Plaintiffs, however, do have a long way to go in proving that the bare spot in the photograph taken by Karen Poole was the bare spot Keith Poole slipped on. They also have a great burden in proving that Keith's signature on the occurrence report was forged and that the emergency room report was incorrect. In addition, there are issues of contributory negligence and waiver. Whether the spot slipped on was ice, as defendant contends, or grass, as plaintiffs contend, is a question this court cannot answer on summary judgment. Inasmuch as plaintiffs have presented evidence upon which a jury could find that defendant was negligent under the common law of North Carolina, the undersigned will recommend that defendant's Motion for Summary Judgment be denied and this action placed on the district court's next available trial calendar.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant Sugar Mountain Resort, Inc.'s Motion for Summary Judgment be DENIED and this action placed on the district court's next trial calendar.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to defendant Sugar Mountain Resort, Inc.'s Motion for Summary Judgment (#18).