Opinion
Civil Action No. 02-11890-MAP.
August 29, 2005
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND TO STRIKE AND PLAINTIFFS' MOTION TO CERTIFY (Docket Nos. 20, 23 and 37)
I. INTRODUCTION
This action arises from an appalling tragedy, the death of fourteen-year-old Matthew Walsh from injuries suffered while skiing at the Jiminy Peak Ski Resort on February 11, 2002.
Matthew's parents, Timothy and Christina Walsh ("plaintiffs"), have brought this action in two counts, seeking damages both for Matthew's wrongful death and for his conscious pain and suffering. Defendant Jiminy Peak Inc. ("defendant") has moved for summary judgment based on the application of the Massachusetts Ski Safety Act, Mass. Gen. Laws ch. 143, §§ 71H- 71S. Finding that this statute does apply, the court will allow defendant's motion as to Count One, the plaintiffs' wrongful death claim. Since disputed issues of fact, however, forbid summary judgment on the claim for conscious pain and suffering, defendant's motion will be denied as to Count Two.
Because the law in this area is reasonably clear, the court will deny plaintiff's motion to certify a question to the Massachusetts Supreme Judicial Court.
II. SUMMARY JUDGMENT STANDARD
A court may properly grant summary judgment if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue is one that reasonably could be resolved in favor of either party, and a material fact is one that "might affect the outcome of the suit under the governing law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).
Once the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trial-worthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied, 515 U.S. 1103 (1995). Not every factual conflict, of course, necessitates trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997)
III. FACTUAL BACKGROUND
The court, as it must for a summary judgment motion, views the properly documented facts in the light most favorable to the non-moving party. Conward v. Cambridge School Committee, 171 F.3d 12, 18 (1st Cir. 1999).
The tragic story of this case begins on February 11, 2002, when Matthew Walsh, age fourteen, visited Jiminy Peak Ski Resort in Berkshire County, Massachusetts, as part of his high school's ski club trip. The club arrived at the resort at approximately 4:00 p.m. and the students were on the mountain by 4:30 p.m. Matthew had skied at least once down the Left Bank trial when he and two friends, Nicolas and Pamela Moutopoulos, decided to ski Whitetail, a trail carrying a "black diamond" rating, meaning that it was of the highest level of difficulty. Plaintiffs aver, and the court for purposes of this motion accepts as true, that two skiers had previously complained to the defendant's employees that conditions on Whitetail were too icy to permit safe skiing at that time and the trail ought to be closed. Nevertheless Whitetail remained open when the three high school students began their run.
Soon after starting down the slope, Matthew lost control and veered off toward the side of the trail. Nicolas, who had stopped to assist his sister after she fell, noticed Matthew beginning to lose his balance. After collecting themselves farther down, Nicolas and Pamela did not see Matthew and assumed he had recovered from his fall and had made his way to the bottom of the trail.
In fact, unbeknownst to his companions, Matthew had collided with some object, or objects, off the right side of the trail and suffered injuries that were to prove fatal. The evidence of record is insufficient to permit any factfinder to conclude with certainty whether the object Matthew hit was a tree or a pole — both were in the area near where he was found — but it was clear that, whatever the object, it was beyond the skiable boundary of the trail.
Jiminy Peak's ski patrol was notified at approximately 4:45 p.m. that a skier had gone off the side of Whitetail and was missing. In response, defendant dispatched ski patroller Amber Moore to investigate. Moore descended the trail while another ski patroller prevented other skiers from entering. An experienced skier and ski patroller, Moore reached the bottom of the trail with some difficulty, did not locate Matthew, and recommended that Whitetail be closed. Based on the report from Moore, the management instructed that the trail be closed and that she perform another sweep. The trail head was cordoned off with rope and Moore again descended the trail looking for skiers who might have gone off into the woods. Moore did not locate Matthew and at approximately 5:30 p.m. the lights on the trail were turned off.
At approximately 6:15 p.m., when Matthew still had not appeared, Matthew's friends notified ski patroller Ellis Rud that he was missing and last seen on Whitetail. Rud requested that the lights on the trail be turned back on and, with the aid of crampons, proceeded to sweep Whitetail once more. Matthew was then found lying off the right-hand side of the trail.
Viewing the facts in the light most favorable to the plaintiffs, a jury could find that the boy still exhibited some signs of consciousness at the time he was discovered. Following his evacuation from the mountain by the ski patrol, Matthew was turned over to an ambulance crew at 7:20 p.m., more than two hours after he suffered his injuries.
Matthew died one week later on February 18, 2002, from the injuries sustained at the time of his collision. The medical evidence is uncontested that the delay in discovering Matthew did not contribute to his demise; sadly, the injuries he received on impact with whatever he struck made his death inevitable.
IV. DISCUSSION
Enacted in 1978, the Massachusetts Ski Safety Act ("MSSA"), Mass. Gen. Laws ch. 143, §§ 71H- 71S, is intended to "define and restrict the responsibility and liability of ski operators to skiers injured by risks inherent in the sport of skiing." Eipp v. Jiminy Peak, Inc., 154 F.Supp.2d 110, 113 (D.Mass. 2001),quoting McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 679, 665 N.E.2d. 26, 27 (1996). Within its provisions are spelled out the duties incumbent upon a ski area operator to "be responsible for the maintenance and operation of ski areas under its control in a reasonably safe manner." Mass. Gen. Laws ch. 143 § 71N(6).
This general duty, however, is tempered by an exclusion from liability "for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing." Id. "The MSSA represents the legislature's judgment as to the proper balance between the skier's need for safety and the ski area operator's economic survival." Eipp, 154 F.Supp.2d at 110. (internal quotation omitted).
As a threshold matter, the plaintiffs argue that the MSSA is inapplicable to claims for wrongful death, which (they claim) must be addressed under the Commonwealth's wrongful death statute, Mass. Gen. Laws ch. 229, § 2. In support of this argument they cite the Supreme Judicial Court's decision inGrass v. Catamount Development Corp., 390 Mass. 551 (1983).
In Grass, the SJC addressed the narrow question of whether MSSA's one-year statute of limitations, set forth at Mass. Gen. Laws ch. 143, § 41P, governed actions based on wrongful death or whether the three-year period mandated in the wrongful death statute, Mass. Gen. Laws ch. 229, § 2, was controlling. The SJC held "that an action for wrongful death arising out of an injury to a skier and brought against the operator of a ski area is governed by the limitation of actions provision in G.L.c. 229, § 2." Grass, at 554.
The statute of limitations is not an issue in the present case, but the plaintiffs read Grass broadly. Based on its holding, they argue that in this case the court should disregard not only the limitation provisions but all the substantive provisions on the MSSA as well, including those that limit the defendant's exposure to liability, and simply analyze their claims under a traditional common law negligence rubric.
Plaintiffs rely on references in two cases, Atkins v. Jiminy Peak, Inc., 401 Mass. 81, 86 (1987) (Liacos, J., dissenting), andSpinale v. Pam F., Inc., 1995 Mass.App.Div. 140, 141 (1995), which might be construed to suggest, in dicta, that the Grass holding is more expansive and provides a blanket exemption from the MSSA for wrongful death claims. While it was reasonable for the SJC to conclude that the Legislature would "put a wrongful death claimant on a different footing from one claiming injury" for purposes of expanding the time in which a claim may be brought, to read the court's holding more broadly as to supplant the substantive provisions would be to gut the MSSA of its purpose. Grass, at 553; quoting Gallant v. Worcester, 383 Mass. 707, 714 (1981).
In his dissent in Atkins, Justice Liacos commented that "the statutory scheme is designed not only to enhance the safety of skiers, but also to limit the liability of a ski area operator for his negligent activities which cause injuries (but not deaths, see Grass) on the ski slopes." Atkins, at 86. Viewed in isolation, this passage appears to support the plaintiffs' argument that the MSSA does not apply to cases involving wrongful death. Atkins, however, involved a plaintiff's claim for injuries caused by a ski operator negligently renting her defective equipment. The court held that the MSSA and its statute of limitations were applicable because the injury occurred on the ski slope, even though the alleged negligent conduct took place in the ski operator's base lodge. Justice Liacos's dissent focuses not on the distinction between types of injuries, but rather on the SJC's holding that the MSSA covered ski injuries "regardless of where the negligence that caused the harm takes place." Id., at 85. Justice Liacos's comments are focused on the applicability of section 71P, the statute of limitations provision of the MSSA, in cases of wrongful death. His passing remark does not suggest the supplantation of the substantive provisions of the act.
Spinale is even less persuasive. There the plaintiff was injured when she lost control after skiing over ice on the trail; there was no issue of wrongful death. In a parenthetical accompanying its citation to Grass, the court states "G.L.c. 143, § 71H-71S governs actions for personal injuries, but not for wrongful death." Spinale, at 141. This loose description of theGrass holding clearly refers only to the statute of limitations portion of section 71P, not the entire act.
Courts of this state have recognized that the Legislative intent in passing the MSSA was "to decrease the economic threat to the ski industry by limiting an operator's liability, while making the sport safer by requiring operators to implement greater safety precautions." Atkins, at 84, quoting, Ski Operators and Skiers — Responsibility and Liability, 14 New Eng. L. Rev. 260, 271 (1978). "The Legislature is given broad latitude in determining how best to ensure safety while at the same time controlling liability." McHerron, 422 Mass. at 679; see also, Guzman v. MRM/Elgin, 409 Mass. 563, 567 N.E.2d 929 (1991). The MSSA "embodies the Legislature's judgment that it would be both physically impossible and economically intolerable to require ski areas to guard against and assume responsibility for the negligence of their patrons." Tilley v. Brodie Mountain Ski Area, 412 Mass. 1009, 1010 (1992). The MSSA therefore "represents the legislature's judgment as to the proper balance between the skier's need for safety and the ski area operator's economic survival." McHerron, at 679.
The passing references cited by the plaintiffs provide inadequate support for the dramatic reduction in the scope of the act they argue for. If the substantive provisions of the MSSA fall to the wayside, thus permitting liability to attach where a skier dies rather than is merely injured, a ski resort operator would be left to protect against all possible injuries lest they prove to be fatal. Such a result would be inconsistent with the clear intent of the statute.
The decision to certify a question to a state's highest court "rests in the sound discretion of the federal court." Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974). As the courts of this district have counseled, "[i]t 'is inappropriate for a federal court to use [certification] when the course the state courts would take is reasonably clear.'" Stewart v. Milford-Whitinsville Hosp., 349 F. Supp. 2d 68, 70 (D. Mass. 2004) (court holding that certification of question was inappropriate), quoting Fischer v. Bar Harbor Banking and Trust Co., 857 F.2d 4, 8 (1st Cir. 1988). The state of the law regarding application of the MSSA to wrongful death actions is reasonably clear. Certification of a question to the SJC would, therefore, not be proper.
In the event that the court finds that the MSSA applies, the plaintiffs next argue that a ski area operator like the defendant may be held to a higher standard where it voluntarily assumes duties not imposed by the MSSA. Plaintiffs point to the fact that Jiminy Peak had a policy of warning of icy conditions, closing trails when they became unsafe to ski, and padding some obstacles near the sides of the trails. While icy conditions and objects off the side of the trail may be dangers inherent in skiing that the area operator is not responsible for under the MSSA, negligence in failing to warn of these conditions or in protecting skiers from these objects may — the plaintiffs contend — form a basis for liability when a defendant voluntarily assumes the duty to take reasonable action to reduce or eliminate these risks.
Massachusetts has recognized, in some circumstances, the concept of voluntary assumption of duties. Cottam v. CVS Pharmacy, 436 Mass. 316, 323 (2002). These circumstances have, however, been defined fairly narrowly and involve a fact-specific inquiry. Id. at 324. Cottam was a case in which the defendant pharmacy included detailed warnings on its prescription drug labels. The court held that CVS, by including the more detailed warnings on its labels, had assumed a voluntary duty to provide complete warnings and information to its customers and was negligent for failing to warn the plaintiff adequately. Cf., Frye v. Medicare-Glasser Corp., 1523 Ill. 2d 26, 605 N.E.2d 557 (1992) (court holding that a drug store did not voluntarily assume a duty by merely placing a warning that the drug may cause drowsiness).
Prominent in the Cottam court's reasoning was that "the patient could reasonably interpret the warning form as a complete and comprehensive list of all known side effects, [and that] it is appropriate to impose on the pharmacy a duty commensurate with what it appeared to have undertaken." Davis, at 325. Given the constantly changing conditions that exist on ski slopes that affect the risks inherent in the sport of skiing, Jiminy Peak's effort to warn of icy conditions, close trails, or pad on-trail obstacles could not, as a matter of law, be considered a "complete and comprehensive list of all known" hazards so as to impose additional duties.
Courts have frequently held that defendants have not assumed voluntary duties because of their decision to undertake additional tasks. In Davis v. Westwood Group, 420 Mass. 739, 652 N.E.2d 567 (1995), the SJC found that the defendant dog racing track had not assumed an expanded duty to protect pedestrians because it had hired a police officer to monitor crosswalks along a highway. The court rejected the plaintiff's contention that Westwood, by employing the police officers, "undertook a much broader duty — that of providing safe pedestrian passage across" the street. Davis, at 747. Instead, the court opined that to impose such a broad duty would be "unreasonably onerous" and against public policy. Id.; see also, Smith v. Robertshaw Controls Co., 410 F.3d 29 (1st Cir. 2005) (court holding no liability based on theory of voluntary duty imposed on gas company because of its "GAS Check" inspection service, which was not performed during a service call at plaintiff's residence following a report of gas smell outside).
There is no authority that counsels this court to apply the principle of voluntary assumption of duty to this factual situation, nor does the substance of the MSSA and the intent underlying it support such action. The language of the statute is clear: "in any action brought against a ski area operator based on negligence, it shall be evidence of due care where the conduct of an operator has conformed with the provisions of this chapter or rules or regulations of the [recreational tramway] board made pursuant to section seventy-one J." Mass. Gen. Laws ch. 143, § 71P. There is simply nothing to suggest that a defendant should lose the protection of the MSSA because it chose to do more than it was required.
Ironically, imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA, which is to "increase skier safety by 'requiring operators to implement greater safety precautions.'"Eipp, 154 F.Supp.2d at 113; quoting, Tilley, 412 Mass. at 1009. The result of the plaintiffs' argument, if accepted, would be to discourage ski operators from doing anything more than the minimum required of them under the MSSA. This impairment of safety would be "obviously inconsistent with the underlying Legislative intent" of the Ski Safety Act.Spinale, 1995 Mass.App.Div. at 142. A ski operator should be permitted, if not encouraged, to provide a level of safety greater than what is provided for under the MSSA without the concern that doing so will make them vulnerable to an enhanced level of liability.
The Eipp holding cannot be read, as the plaintiffs argue, to impose liability for the voluntary assumption of duties by the operator. It is true that in that case the court made reference to the defendant's decision to pad equipment on certain trails but not others as evidence of their breach of a voluntarily assumed duty. However, the court also observed that the MSSA shielded ski operators from liability for injuries "which arise out of the risks inherent in the sport of skiing." The court concluded that "[t]he presence of a snowgun in the middle of the trail does not appear to fall into this category" of inherent risks. Eipp, at 116; see also Diehl v. Catamount Ski Area, Inc., No. 89-30006-F, 1990 WL 72073, at *3 (D. Mass. May 23, 1990) (discussing that 'risks inherent in the sport of skiing' are those natural conditions that are "beyond the control of the ski area operators or the skier").
In this case, Matthew encountered icy conditions that caused him to lose control, veer off the trail, and collide with an object — either man-made or natural — that was outside the skiing area. Unlike the snowgun in Eipp, the hazard that Matthew encountered was a condition explicitly enumerated in the MSSA. The snowgun is also distinguishable in that it, unlike the utility pole or tree here, was "in the middle of [the] ski trail" Eipp, at 116. What Matthew collided with was off the trail. The two situations are simply not comparable.
"A skier shall be presumed to know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots, and shall assume the risk of injury of loss caused by such inherent risks." Mass. Gen. Laws ch. 143 § 71O.
In sum, even viewing the facts in the light most favorable to the plaintiffs it is evident that Jiminy Peak complied with, and in some cases exceeded, the minimum safety standards enumerated in the MSSA. Defendant is therefore entitled to summary judgment as to Count One of the complaint.
The plaintiffs' claim in Count Two is for the conscious pain and suffering of Matthew caused by Jiminy Peak's failure to locate him for more than two hours after the accident. As noted, the unanimous medical evidence is that Matthew's collision with the object off the trial inflicted bodily injuries that inevitably led to his death. Any negligence on the part of Jiminy Peak in failing to locate him was not a causal factor in his ultimate death.
There is, however, a dispute of material fact as to whether Matthew was conscious at the time he was found by ski patroller Rud. If Matthew was conscious and responding to Rud, as some of the evidence suggests, then it would be reasonable for a jury to find Jiminy Peak's negligence extended or exacerbated the suffering Matthew endured because of the delay in locating him. Summary judgment on Count Two, therefore, is not appropriate.
Finally, the testimony and report of the plaintiffs' expert, Helge Lien, is not relevant to the sole remaining issue in the case. While the court makes no determination of the witness's qualifications or expertise on the subject matter of his report, it need not do so. It is clear that Mr. Lien's opinions are that Jiminy Peak's negligence was the proximate cause of Matthew's death. As has already been discussed, this claim is now foreclosed. It is therefore unnecessary for the court to address the admissibility of the Mr. Lien's report and testimony.
V. CONCLUSION
For the foregoing reasons, the defendant's Motion for Summary Judgment (Docket No. 20) is hereby ALLOWED on Count One of the Complaint and DENIED on Count Two; and its Motion to Strike (Docket No. 23) is DENIED as moot. The plaintiffs' motion to certify a question to the Supreme Judicial Court (Docket No. 37) is DENIED. The clerk will set this case for a status conference to determine further proceedings.
It is So Ordered.