Opinion
No. 60477-5-I.
December 15, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-08603-3, Nicole Maclnnes, J., entered July 27, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Schindler, C.J., and Becker, J.
The plaintiff suffered injuries while snow tubing at Tube City, which is owned and operated by New Stevens LLC., d/b/a Stevens Pass. Plaintiff sued Stevens Pass for negligence, claiming negligent design, maintenance, and operation of the tubing facility. The trial court granted Stevens Pass's motion to strike plaintiff's expert witness, upon whom she relied to establish that Stevens Pass breached its duty of care. The court also granted Stevens Pass's motion for summary judgment, because plaintiff was unable to establish a prima facie negligence claim. We affirm.
Facts
Plaintiff, Kathryn Simpson, suffered injury on February 14, 2003, while snow tubing at Tube City, which is owned and operated by New Stevens LLC., d/b/a Stevens Pass Ski Area. Tube City was operated by New Stevens on USDA Forest Service land and subject to regulation by both the Forest Service and the Washington State Parks and Recreation Commission. Tube City provided two groomed runs designed for its patrons to slide down on inflated inner tubes. A berm made of snow constructed by Tube City divided the two lanes to control the path of the tubes. The end of the runs banked uphill and angled slightly to assist in deceleration.
During her first trip down the tubing run, Simpson's tube rotated 180 degrees so that she was sliding downhill backwards. She attempted to turn so that she would avoid hitting the back of her neck and head on the berm at the bottom of the run. She made a jerking motion on the tube's handles in order to turn herself and the tube, positioning her body so that her shoulder took the brunt of the impact when she collided with the berm. She suffered a fractured clavicle and two fractured ribs.
Simpson filed suit in King County on March 14, 2005, alleging negligent design, maintenance, and operation of the snow tubing facility. On May 25, 2007, Stevens Pass moved for summary judgment.
On June 20, 2007, Stevens Pass moved to strike incident reports from other accidents on the two tubing runs; the excerpts from the National Ski Area Association's ("NSAA") Tubing Operations Resource Guide, offered as evidence of the applicable standard of care; and John Hanst's expert testimony, also offered to establish the standard of care. The court ruled on both the motion to strike and the summary judgment motion on June 26, 2007. It expressly stated that Hanst was not qualified as an expert in the case and entered summary judgment for Stevens Pass, dismissing Simpson's claim with prejudice: "Without an expert on the issue of construction/operation of the facility, plaintiff has no evidence that's admissible to establish negligence. The incident reports, even if admissible, by themselves are insufficient to raise an issue of material fact."
Nothing in the record before us explains how the trial court ruled on the NSAA standards.
Simpson filed a motion to reconsider the order striking the expert witness and the entry of summary judgment. Without comment, the court denied reconsideration. Simpson appeals.
Discussion
I. Expert Witness
The admissibility of expert testimony in Washington is governed by ER 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Application of this rule involves a two-step inquiry: whether the witness qualifies as an expert and whether the expert testimony would be helpful to the trier of fact. Reese v. Stroh, 128 Wn.2d 300, 306, 907 P.2d 282 (1995). The allowable bases of an expert's opinion are set forth in ER 703:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
An expert must stay within the area of his expertise. Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 102, 882 P.2d 703, 891 P.2d 718 (1994); see, e.g., Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 50-51, 738 P.2d 665 (1987) (trial court did not err in excluding testimony of engineer who had almost no experience with reverse engineering of the type needed). Because this evidentiary ruling was made in conjunction with a summary judgment motion, we review it de novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); Warner v. Regent Assisted Living, 132 Wn. App. 126, 135-36, n. 13, 130 P.3d 865 (2006).
To qualify Hanst as an expert, Simpson relies on his deposition testimony that he was experienced with alpine skiing, had careers in "recreation and refrigeration," and worked with ice and winter sports. Simpson also highlights that Hanst managed a sledding hill on a golf course and helped design and build various sports arenas and a bicycle race track. In addition, Simpson cites his work as a volunteer ski patroller and emergency medical technician.
Stevens Pass asserts that although a witness may qualify as an expert based on practical experience, it must be relevant experience. Stevens Pass highlights that Hanst has no experience in designing, operating, or working at a snow tubing facility. His only experience at ski areas was as a volunteer ski patroller and as an informal manager of a golf course hill that residents used for sledding in the winter. However, Hanst never constructed any features on the hill, and people brought their own equipment — it was informal. Because Tube City is a modern snow tubing facility with groomed lanes and a rope tow, Stevens Pass argues that Hanst's "casual" experience with sledding on a golf course hill is not sufficient to qualify him as an expert.
Hanst is not qualified as an expert witness on snow tubing design and engineering. Hanst has never designed or operated a snow tubing facility and does not have a degree in engineering. Hanst asserted that he was an expert in the ski area, but only cites his experience in association with skiing professionals as support. Hanst has experience in preparing reports in personal injury cases as a forensic expert, but of the approximately 936 reports that he has produced, only 6 concerned snow tubing. And as Stevens Pass correctly notes, Hanst never had any responsibility for maintaining the golf course sledding hill or designing a run upon it.
Hanst asserted that he would testify that the standard of care owed to Simpson is based on the NSAA industry standards, but he provided no legal basis for this assertion. Even if he had been able to prove that the NSAA standards were binding legal standards in Washington, Hanst failed to gather evidence necessary to show that the run was noncompliant. In the two days he spent at Tube City filming the runs to prepare for his report, he failed to conduct any measurements or calculations to determine the slope of the run or the speed of Simpson's descent. Nor did he ever conduct tests on the runs to recreate the conditions in which Simpson was injured.
Although Hanst may be qualified as an expert on amusement rides, Hanst's assertion that snow tubing is an amusement ride is unfounded. Washington State does not regulate snow tubing as an amusement ride. See RCW 67.42.010(2) ("`Amusement ride' means any vehicle, boat, bungee jumping device, or other mechanical device moving upon or within a structure, along cables or rails, through the air by centrifugal force or otherwise, or across water, that is used to convey one or more individuals for amusement, entertainment, diversion, or recreation"). The snow tube run itself has no mechanical device moving upon or within a structure or cables. It is natural terrain more akin to a ski slope. The rope tow alongside the run was not involved in the accident. The entire skiing operation, of which Tube City is an integrated part, is subject to the same regulations and inspections by the Washington State Parks Department and USDA Forest Service.
Hanst has certifications from the National Association of Amusement Rides Safety Officials and the Amusement Manufacturers and Suppliers International, and asserts that snow tubing is properly classified as an amusement ride.
The court did not err in striking Hanst as an expert witness for lack of qualifications related to snow tubing.
II. Summary Judgment
"`The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court.'" Genie Indus., Inc. v. Market Transp., Ltd., 138 Wn. App. 694, 700, 158 P.3d 1217 (2007) (quoting Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002)). "`Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.'" Id. (quoting Sheehan v. Cent. Puget Sound Reg'l Transit Auth., 155 Wn.2d 790, 797, 123 P.3d 88 (2005)). "The moving party bears the initial burden of establishing its right to judgment as a matter of law. Once the moving party satisfies its initial burden, the burden then shifts to the nonmoving party to show that a triable issue exists. All reasonable inferences from the evidence must be construed in favor of the nonmoving party." Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 752 n. 1, 162 P.3d 1153 (2007) (citations omitted).
Simpson sued Stevens Pass for negligence. To prevail, she must establish that Stevens Pass owed her a duty of care, that Stevens Pass breached that duty, that an injury resulted, and that the claimed breach was a proximate cause of the injury. Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992).
Under Washington common law, the duty of care owed by a landowner to person on the land is governed by the entrant's status as invitee, licensee, or trespasser. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 128, 875 P.2d 621 (1994). The parties do not dispute that Simpson was a business invitee. A possessor of land owes invitees the duty to use reasonable care, which includes an affirmative duty both to keep premises in a reasonably safe condition, and to discover dangerous conditions. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49, 914 P.2d 728 (1996); Iwai v. State, 129 Wn.2d 84, 93, 915 P.2d 1089 (1996). A landowner also has a duty to protect the invitee against known or obvious dangers where the possessor anticipates harm to the invitee, regardless of the obviousness of the danger or the knowledge of the invitee. Suriano v. Sears, Roebuck Co., 117 Wn. App. 819, 826, 72 P.3d 1097 (2003).
Washington follows the Restatement (Second) of Torts § 343 (1965): an owner of land is not liable to an invitee for injuries caused by a condition on the land unless the owner knows or should know that the condition presented an unreasonable risk of harm, could not reasonably expect its invitees to realize the risk themselves, and failed to make the condition reasonably safe or warn the invitee.
This is consistent with the duty imposed by the ski statute, RCW 79A.45, although it is not clear whether the ski statute applies to snow tubing facilities. "Although the statute imposes both primary and secondary duties on skiers, it `does not purport to relieve ski operators from all liability for their own negligence.'" Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 524, 984 P.2d 448 (1999) (quoting Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 500, 834 p. 2d 6 (1992)). "A skier is a business invitee of the ski area operator. The operator owes a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious." Scott, 119 Wn.2d at 500. Therefore, risks caused by negligent provision of dangerous facilities are not "inherent" in a sport; a reasonably safe facility must be provided. Id. at 498, 502. The statute does not provide a definition of "inherent risk."
Simpson attempted to establish duty and breach through her expert witness, Hanst, and through two other methods: the NSAA's Tubing Operations Resource Guide, and a series of incident report forms from other patrons who had been injured at Tube City in the preceding five years.
Because the court properly struck Hanst, Simpson had no expert testimony to establish that the NSAA standards apply in Washington. Moreover, the NSAA standards themselves do not purport to be a binding legal standard. The front cover of the Tubing Operations Resource Guide states: "The information contained in this document has been prepared and/or assembled by MountainGuard in conjunction with NSAA for informational purposes only and is not intended to provide legal advice." The NSAA standards, standing alone, do not establish a standard of care.
Nor do the records of prior accidents at Tube City define the standard of care or provide evidence of breach. In a negligence case, other accidents and injuries are inadmissible to show a general lack of care or negligence. Breimon v. General Motors Corp., 8 Wn. App. 747, 754, 509 P.2d 398 (1973) ("evidence of a previous similar accident involving a party generally is inadmissible to show a lack of care by the same party as the cause of the accident in question"); 5 Tegland, Washington Practice: Evidence § 402.11 at 303-4 (2007). As the trial judge correctly noted on the order entering summary judgment for Stevens Pass, the prior accidents at Tube City in and of themselves are insufficient to raise a genuine issue of material fact.
Because the incident reports themselves do not create a genuine issue of material fact as to lack of care or negligence, it is not necessary to reach the issue of their admissibility.
The only evidence that remained was the fact of injury and the evidence presented by Stevens Pass's expert witnesses that the tubing facility met its standard of care. Simpson's injury alone is insufficient to prove breach, as negligence cannot be inferred from the mere fact that an injury occurred. See Hansen v. Wash. Natural Gas Co., 95 Wn.2d 773, 778, 632 P.2d 504 (1981) (occurrence of injury was insufficient to prove dangerous condition establishing liability). Nothing established a breach of the standard of care owed to Simpson.
There was no genuine issue of material fact for a jury to decide. Simpson failed to establish at least one element of a prima facie negligence case. Stevens Pass was entitled to judgment as a matter of law.
We need not reach Stevens Pass's affirmative defense that Simpson assumed the risk of injury while snow tubing. Simpson has not established the standard of care owed to her, and her prima facie negligence claim therefore fails.