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HOAR v. GREAT EASTERN RESORT MANAGEMENT, INC.


HOAR

v.

GREAT EASTERN RESORT
MANAGEMENT, INC.


November 6, 1998
Record No. 972334

PATRICIA STONE HOAR, AS GUARDIAN OF THOMAS HOAR

v.

GREAT EASTERN RESORT MANAGEMENT, INC., t/a MASSANUTTEN SKI RESORT

OPINION BY CHIEF JUSTICE HARRY L. CARRICO
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Joshua L. Robinson, Judge Designate
Present: All the Justices

On January 19, 1992, Thomas Hoar (Thomas)
suffered disabling brain damage in a skiing accident on a ski
trail maintained at a ski area near Harrisonburg by Great Eastern
Resort Management, Inc., t/a Massanutten Ski Resort
(Massanutten). In a motion for judgment alleging negligence on
the part of Massanutten, Thomas’s wife and guardian, Patricia
Stone Hoar (the Guardian), sought recovery of damages for
Thomas’s injuries. A jury returned a verdict in the Guardian’s
favor in the amount of $6,170,563.00. Upon motion of Massanutten,
the trial court set the verdict aside and entered judgment in
favor of Massanutten. We awarded the Guardian this appeal and
granted Massanutten’s assignments of cross-error.

At the outset, Massanutten raises a question
concerning the standard we should apply in reviewing the judgment
of the trial court. Massanutten argues that when a trial court
sets aside a jury verdict, the verdict is not entitled to the
same weight as one that has been approved by the court. Mann
v. Hinton
, 249 Va. 555, 556-57, 457 S.E.2d 22, 23 (1995).
Massanutten also asserts that the jury verdict in this case is
entitled to little or no weight because it was in the exact
amount of Thomas’s special damages. When such a verdict is
returned, Massanutten says, "it bespeaks a compromise
. . ., the integrity of the jury’s finding on liability
is suspect, and the . . . finding on liability is
impeached." Ford Motor Co. v. Bartholomew, 224 Va.
421, 433-34, 297 S.E.2d 675, 681-82 (1982). Further, Massanutten
maintains, the trial court was of opinion there was no evidence
to support the verdict in any event. Additionally, Massanutten
says, neither party seeks a new trial. "Under these
circumstances," Massanutten concludes, "the standard of
review should focus on whether there is evidence to support the
trial court’s action entering judgment for Massanutten rather
than whether there is evidence to support the jury verdict."

However, it is the established rule that
"[e]ven though the trial court [has] set the verdict aside,
we [will] state the facts and reasonable inferences to be drawn
therefrom in the light most favorable to the [party] who
prevailed before the jury." Stump v. Doe, 250 Va. 57,
58, 458 S.E.2d 279, 280 (1995). See also Griffett
v. Ryan
, 247 Va. 465, 467, 443 S.E.2d 149, 150 (1994).
"[A]nd if there is any credible evidence in the record that
supports the verdict, we must reinstate that verdict and enter
judgment thereon." Id.

Stated in the light most favorable to the
Guardian, the evidence shows that on January 17, 1992, two days
before Thomas’s accident, Massanutten opened to the public a new,
more advanced ski trail, known as "Diamond Jim."
[1] This trail was
built in a heavily wooded area by a "cut and fill"
process, which is used when a ski run does not follow the natural
"fall line" of a hill or mountain. According to an
expert witness called by the Guardian, "[t]he fall line of a
hill or a slope is the direction a ball would roll if you were to
let it go and it rolled slowly [or] the direction water would
flow if left to itself."

In the cut and fill process, the side of a hill
or mountain is cut away to form one side of a ski run and the
excavated soil is used to fill in the opposite side to make the
run even and to double its width. In the area of Diamond Jim
where Thomas was injured, the cut and fill process created
[2] a "drop-off," having a vertical drop of some
thirty feet, on the left side of the downhill ski run. 2
The bottom of the drop-off contained rocks and logs. The drop-off
also had a double fall line, meaning that the hypothetical ball
"wouldn’t go straight down the middle of [the ski] run [but] would taper off [to the bottom of the drop-off]." The cut
and fill process also left a gap between the left edge of the ski
run and the tree line, which bordered the remainder of the run on
both sides, eliminating a "visual cue to the skier that this
is the edge of the trail, don’t go over here."
[3]

The groomed area of the ski run had a snow
depth of two feet. The snow surface was "very hard
packed" and the ground was "extremely hard." A
"berm" of snow, one foot higher than the groomed area,
ran along the left edge of the run and the snow tapered off to a
depth of only a few inches at the bottom of the drop-off.

Prior to Thomas’s accident, Massanutten had
ordered and received a shipment of bright orange "warning
barrier fencing" for use on Diamond Jim. At the time of the
accident, Massanutten had installed fence posts in the area where
Thomas was injured, but had not yet attached the bright orange
fencing; the fencing was installed "a couple days
later."
[4]

As a result of his brain injury, Thomas is
incompetent and was unable to testify. A friend, George Archer
Marston (Marston), a civil engineer who accompanied Thomas to the
Massanutten ski resort on the occasion in question, testified as
a witness for the Guardian. According to Marston’s testimony, he
and Thomas, both experienced skiers, purchased lift tickets and
began skiing about 9:00 a.m. on January 19, 1992. After warming
up on some of the easier slopes, they took a chair lift to
Diamond Jim. At the time, Diamond Jim had been groomed to its
left edge, permitting skiers to ski all the way to that edge. In
addition, snowmaking machinery was blowing snow across the ski
run, blinding skiers using the right side of the run. Also, there
were "moguls" in the center of the ski run, but none on
the edges.
[5]

Thomas and Marston skied down the left side of
Diamond Jim without incident. They then took the chair lift for a
second trip down Diamond Jim. After skiing about halfway down the
run, they stopped at a sign marked "slow," below which
the slope steepened, and talked for a couple of minutes. Thomas
decided to ski down the left side of the run and, not "going
fast," skied to the left laterally across the slope, with
Marston following.

Marston stated that shortly before Thomas
reached the edge of the slope, he "caught an edge and lost
his balance,
[6] bent at the
knees and kind of sat down on the back of his skis and then slid
off the edge of the slope out of . . . sight."
Marston skied "right up to the edge expecting to find
[Thomas] adjacent to the slope, maybe six to eight feet below the
edge of the slope," but instead "found this very steep,
large vertical drop." Thomas was lying between two logs at
the bottom of the drop, "probably laterally a hundred feet
away from [Marston and] over 30 feet vertically below
[him]." Thomas was unconscious and bleeding from his nose,
mouth, and one ear.

Marston also testified that on his first trip
down Diamond Jim on the morning of January 19, he did not see the
steep drop-off. Marston stated further that, when he went to see
what had happened when Thomas slid out of sight, he had to ski
"right up to the edge[,] . . . probably three to
five feet from the edge," before he realized the extent of
the drop-off.

Dr. James Broderson (Dr. Broderson), a dentist
who had skied at the Massanutten resort many times, was called as
a witness by Massanutten. He skied down Diamond Jim on the
morning of January 19, 1992, just ahead of Thomas. Dr. Broderson
stopped approximately twenty feet downhill from the
"slow" sign to make sure the course was clear before he
"head[ed] on down." He observed Thomas skiing toward
the left side of the slope, then trying "to initiate a turn
to the right" but either catching an edge or crossing his
skis, and falling forward "[o]ut of control."

After Thomas was carried away, Dr. Broderson
went to the bottom of the drop-off where Thomas had been lying to
look "for some evidence of how it was that [Thomas] got
hurt." There, Dr. Broderson found what appeared to be
"an impact zone with a log." There was "[e]ither
skin" or "maybe a little fiber something
. . . that looked like he had . . . hit
. . . there."

Dr. Broderson had seen "numerous tumbles
like [Thomas's where] no one had been hurt, so [he] didn’t think
[Thomas] would be hurt from what [he] saw." Dr. Broderson
explained, however, that he had "never been over to that
edge and looked over." He thought that the ski "slope
possibly continued out" and was approximately
"level," that "you could probably ski around [the
left side] like you did on the right side," where there was
"a little easier way to go down the slope." He
"didn’t realize there was an embankment"; he "knew
there was a little drop-off, but . . . had no idea it
was like what it was there."

Dr. Gregory O’Shanick, a specialist in brain
injuries, began treating Thomas in June of 1994. Dr. O’Shanick
testified that the object which produced the injuries suffered by
Thomas "would have to be something that was hard, something
that was firm, that was not yielding."

At trial, the Guardian based her case for
liability solely on the proposition that Massanutten was
negligent in failing to warn skiers of the existence of the
drop-off. In setting aside the jury verdict, the trial court,
while approving the jury’s finding in favor of Thomas on
assumption of risk and contributory negligence, ruled: (1) that
without expert testimony "as to what was the standard of
care in the industry," a lay jury could not "decide
what would be an unreasonable risk"; (2) that there was no
evidence to demonstrate that, had a warning been provided, it
"would . . . have made any difference"; and
(3) that there was no showing "that it was more probable
. . . that the injury occurred after [Thomas] went over
the bank than before."

Expert Testimony

At trial, the Guardian presented the testimony
of Richard Penniman (Penniman), an expert in skiing safety. The
Guardian asked Penniman whether he was familiar with "the
skier’s code of responsibility." Upon receiving an
affirmative answer, the Guardian asked Penniman whether there was
"a written ski operator’s responsibility." Massanutten
objected to the question, and the trial court responded that
"[t]he standard of care in the industry may be a relevant
matter for the jury to consider," and allowed the Guardian
to proceed. Penniman replied that there was no operator’s
responsibility code.

The Guardian then asked Penniman if he had
"an opinion whether a warning was necessary in the area
where Tommy Hoar went off" the ski slope. Massanutten
objected to the form of the question, and the trial court
sustained the objection. The Guardian did not rephrase the
question or pursue the matter further but made a proffer of the
testimony Penniman would have given. Nor did the Guardian object
when Massanutten later produced expert testimony concerning
whether the Diamond Jim trail was marked appropriately.

The Guardian now maintains that she "was
not required to produce expert testimony as to the standard of
care of ski area operators in the ski industry." She says
that "[w]hether a ski area ought to alert skiers to
potential hazards or obstacles on a ski slope" is a matter
"as to which [jurors] are as competent to form an opinion as
the witness."

Massanutten contends, on the other hand, that
under Burch v. Grace Street Building Corp., 168 Va. 329,
340, 191 S.E. 672, 677 (1937), the Guardian is estopped from
taking a position inconsistent with one she assumed previously.
Massanutten says that having "attempted to create a factual
issue of the standard of care . . . by trying to elicit
. . . testimony from [her] expert Penniman"
concerning the existence of the duty to warn, the Guardian
"is not permitted now to take the inconsistent position that
the same duty exists as a matter of law."

The Guardian’s present position that expert
testimony was not required to establish the duty to warn is not
inconsistent with, but alternative to, her unsuccessful attempt
to establish the duty through expert testimony. It is not unusual
in the trial of a case for a litigant to find himself blocked in
an effort to establish a point in a certain manner and then have
to resort to a different approach to make the point.

It is the rule in Virginia that a litigant
"may plead alternative facts and theories of recovery"
and "state as many separate claims or defenses as he has
regardless of consistency." Rule 1:4(k). See also
Code Sect. 8.01-281(A); Cooper v. Horn, 248 Va. 417,
423, 448 S.E.2d 403, 406 (1994). We perceive no reason why the
considerations supporting this rule should not also support a
litigant’s shift to an alternative position in a situation like
the present case.
[7]

Citing Rule 5:25, Massanutten also contends
that by failing to object to Massanutten’s use of expert
testimony to describe the standard of care and by trying to
elicit such testimony herself, the Guardian has failed to
preserve an objection to Massanutten’s use of expert testimony at
trial. However, the Guardian is not complaining of Massanutten’s
use of expert testimony but of the trial court’s ruling that she
was required to produce expert testimony to establish a standard
of care. Her assignment of error on the point states that the
trial court erred in setting the verdict aside "on the
grounds that expert testimony was required to prove whether the
drop-off . . . posed an unreasonable risk of injury as
to which [Massanutten] had a duty to warn."

Next, Massanutten argues that "the
introduction of expert testimony concerning the standard of care
with respect to ski slope operators’ duty to warn was appropriate
and, indeed, required in this case." We disagree.

In Board of Supervisors v. Lake Services,
Inc.
, 247 Va. 293, 440 S.E.2d 600 (1994), we said:
Expert testimony is inadmissible regarding "matters of
common knowledge" or subjects "such that [persons] of
ordinary intelligence are capable of comprehending them, forming
an intelligent opinion about them, and drawing their own
conclusions therefrom." Thus, when the question presented
can be resolved by determining what precautions a reasonably
prudent person would have taken under like circumstances, no
expert testimony is required or permitted.

Further, expert testimony is admissible only
when specialized skill and knowledge are required to evaluate the
merits of a claim. Issues of this type generally arise in cases
involving the practice of professions requiring advanced,
specialized education, such as engineering, medicine, and law, or
those involving trades that focus upon scientific matters, such
as electricity and blasting, which a jury cannot understand
without expert assistance.

Id. at 297, 440 S.E.2d at 602 (citations
omitted).

ere, the issue, as framed by one of the
instructions granted below, was whether Massanutten, in the
exercise of ordinary care, was obligated to warn skiers of an
unsafe condition that was not open and obvious. This was not a
complicated or technical issue, and its resolution did not
require specialized skill or knowledge. Rather, it concerned
matters of common knowledge that jurors, with the application of
a reasonable amount of common sense, are as competent of
understanding and deciding as the expert witness. Indeed, as
Kenneth Hess (Hess), Massanutten’s assistant ski area manager,
put it in his testimony: "Common sense tells you that you
ought to tell people that there’s a problem on a ski slope that’s
not easily identifiable."

Finally, by way of cross-error, Massanutten
contends that the trial court erred in refusing to exclude
testimony of the Guardian’s expert witness, Penniman, to the
effect that Massanutten had created "a gap in the cut and
fill line" and "a recess of the trees [so that the] trees now are way, way back away from where the edge of the fill
is [and] the skier no longer has the visual cue that this is the
edge of the trail."

Massanutten argues that Penniman’s testimony
that "the skier no longer has the visual cue" was
inadmissible because it was based upon an assumption not
supported by the record, i.e., that "the edge [of the
ski trail] was not visible." Massanutten also says that this
assumption was contradicted by the Guardian’s own witness,
Marston, who testified that he "could tell where [he] thought the edge of the slope was . . . from where [he
was] standing at the slow sign."

However, Penniman’s testimony concerning
"the visual cue" was not based upon an unsupported
assumption but upon his personal observations, made on two visits
to the ski slope, and from his having "skied at Massanutten
. . . during [his] investigation of [Thomas's] accident." And, although Marston, the Guardian’s witness,
said he could tell where he thought the edge was from where he
had stopped near the "slow" sign, he stated that he did
not realize "the extent of that drop-off . . .
until [he] skied right up to the edge" and found "this
very steep, large vertical drop."

But even if Penniman’s testimony varied from
Marston’s, it does not follow that Massanutten was entitled to
have Penniman’s version excluded. Thomas is the real party
plaintiff in this case, and he did not testify. Hence, this
situation is not subject to the rule of Massie v. Firmstone,
134 Va. 450, 114 S.E. 652 (1922), that a litigant’s
"statements of fact and the necessary inferences therefrom
are binding upon him." Id. at 462, 114 S.E. at 656.
Rather, Thomas is entitled to the benefit of the corollary
enunciated in Massie v. Firmstone that "when two or
more witnesses introduced by a party litigant vary in their
statements of fact, such party has the right to ask the court or
jury to accept as true the statements most favorable to
him." Id.

Primary Negligence

Massanutten cites Whitfield v. Cox, 189
Va. 219, 52 S.E.2d 72 (1949), where we said that "[t]he
owner or proprietor of a place of [business has the] duty
. . . to exercise reasonable care for [his invitee's] safety and protection – such care as would be exercised by an
ordinarily careful and prudent person in the same position and
circumstances." Id. at 223, 52 S.E.2d at 73-74.
Massanutten then states that "[i]n order to prove
negligence, [the Guardian] had to demonstrate that Massanutten
clearly departed from the accepted standard of care followed by
ordinary, prudent ski slope operators of similar slopes."

Massanutten cites testimony by Marston that he
had "seen trails out West that ‘have probably steeper
vertical drops than this off the edge, but they are always either
clearly marked or they are clearly visible.’"
Massanutten then asserts that, here, "the uncontradicted
evidence of [the Guardian's] and Massanutten’s witnesses [was] that the day was clear, the edge was visible from 100 feet, it
created a horizon,
[7] and there was a known drop-off of some unknown
dimension." Thus, says Massanutten, "because the
condition was ‘clearly visible,’ there was no need for
. . . [a] warning."

Continuing, Massanutten submits that it is
irrelevant that "someone else may have marked the trail
differently." The issue, Massanutten states, "is
whether evidence exists to prove that Massanutten clearly
departed from the accepted standard of care followed by ordinary,
prudent ski slope operators of difficult courses when it did not
mark the plainly visible edge of a trail beyond which skiers knew
they should expect conditions they ‘may need to avoid.’"

Such evidence, Massanutten concludes,
"does not exist," and, "[b]ecause there is no
conflict of evidence on this question, the judgment for
Massanutten must be affirmed."

However, there was a conflict in the evidence
on the question whether the "condition" existing
"off the edge" was plainly visible. As Massanutten
stresses, Marston, the Guardian’s witness, said he could tell
where he thought the edge was from where he had stopped near the
"slow" sign. And Massanutten’s expert witness, Larry D.
Heywood (Heywood), testified it was his opinion "that the
edge of the run . . . where [Thomas] went off was
visible from around 100 feet." But Dr. Broderson,
Massanutten’s witness, who also had stopped near the
"slow" sign, stated that he thought the ski slope
possibly "continued out" and was approximately
"level," providing an "easier way to go down the
slope." And Penniman, the Guardian’s expert witness, stated
that "the skier no longer has the visual cue that this is
the edge of the trail." This conflict in the evidence
presented a typical issue for jury determination.

On a similar point, citing an instruction
granted below, Massanutten points out that an occupant of
premises has a duty to warn of an unsafe condition unless the
"condition is open and obvious to a person using ordinary
care for his own safety." Massanutten repeats what Marston
said about seeing the edge from where he stopped at the
"slow" sign and about a horizon being "a key
giveaway" that there is "steep terrain" beyond it.
Massanutten then opines that, with this information available,
"it is readily apparent that ‘a person using ordinary care
for his own safety’ would have avoided skiing near the
edge."

Here again, however, Massanutten is unwilling
to recognize there was a conflict in the testimony relating to
whether the condition existing off the edge of the ski trail was
plainly visible, a conflict that necessarily encompasses the
question whether the condition was open and obvious. That
question, therefore, was also a matter for jury determination.
Furthermore, there was a direct conflict in the evidence
resulting from the "battle of the experts" over the
crucial issue whether Massanutten should have given warning of
the existence of the drop-off, and this conflict alone was
sufficient to make a jury issue of Massanutten’s negligence. The
Guardian’s expert witness, Penniman, testified that the
"hidden drop-off" constituted a "dangerous
area" and that, according to "the practice and custom
in the ski industry," a warning in the form of "a
simple bamboo and rope fence," costing about $10, was needed
to "inform the skier . . . you don’t want to go
here."

On the other hand, Massanutten’s expert
witness, Heywood, testified that "the Diamond Jim run was
maintained and marked appropriately [in conformity] with the
custom and practice" of the ski industry and, accordingly,
that it was not necessary "to put any type of marking on
[the drop-off]." Heywood further opined that, according to
custom and practice, marking of the drop-off was unnecessary
because "skiers are aware that there are edges to the
run" and that "[o]ff the edge . . . is a
variety of things, trees, stumps, rocks, whatever."
[9]

Finally, there was a dispute concerning the
purpose of the bright orange "warning barrier fencing"
Massanutten had ordered and received but, at the time of Thomas’s
accident, had not yet attached to the already-in-place fence
posts in the area of the drop-off. Hess, Massanutten’s assistant
ski area manager, testified that the purpose of the fencing was
"[t]o retain snow on the slope." However, before
Diamond Jim was opened to the public, a letter written by the
engineer employed in the construction of Diamond Jim to the slope
designer on the project stated that "[f]encing of the high
visibility, portable type will need to be installed at various
locations to direct the flow of traffic and to indicate
possible hazards
." (Emphasis added.)

Massanutten devotes a vague footnote to this
subject in which it says that the Guardian
"juxtapositions" Massanutten’s ordering of the fencing
with the letter from the construction engineer "to infer
that Massanutten had planned, but not yet erected, warning
fencing at the area of the drop-off." Not suprisingly, the
Guardian does exactly what Massanutten accuses her of. She
argues, and we think justifiably so, that "[t]he jury was
entitled to infer from this evidence that Massanutten obtained
and used this bright orange fencing to warn skiers to maintain a
safe distance away from dangerous areas, that it intended to do
so at the drop-off on Diamond Jim, and that it was negligent for
failing to do so in this instance."

Causation

As noted previously, with respect to the issue
of causation, the trial court made two rulings. First, the court
ruled that there was no evidence to demonstrate that, had a
warning been provided, it "would . . . have made
any difference." Second, the court ruled that there was no
showing "that it was more probable . . . that the
injury occurred after [Thomas] went over the bank than
before."

Concerning the trial court’s first ruling,
Penniman, the Guardian’s expert witness, was asked "[w]hat
good" a warning would have been to a skier in Thomas’s
situation. Penniman responded that "a fence or a rope
barricade tells [skiers] that the ski area doesn’t want them over
there . . . that it’s hazardous . . . [s]o
they behave differently"; "[t]hey aren’t as inclined to
get close to that edge"; they "usually approach it much
more cautiously"; and if they lose balance, "instead of
trying to regain their balance . . . they will just
fall and let themselves come to a stop rather than fight
it."

Thomas, of course, was unable, because of his
disability, to tell the jury whether, had a warning been
provided, he would have heeded it in the manner suggested by
Penniman. Nor could anyone have spoken for Thomas. But
"[f]requently material facts are not proven by direct
evidence. A verdict may be properly based upon reasonable
inferences drawn from the facts. If facts are present from which
proper inferences may be drawn this is sufficient." Northern
Virginia Power Co. v. Bailey
, 194 Va. 464, 470, 73 S.E.2d
425, 429 (1952). Here, from the circumstances that were proven
below, and "[a]ccording to the ordinary experience of
mankind," the jury was "warranted in the conclusion
that [Thomas's] injury would not have occurred had [a warning] been given." Southern Ry. Co. v. Whetzel, 159 Va.
796, 807, 167 S.E. 427, 430 (1933). See also Norfolk
S. Ry. Co. v. Lassiter
, 193 Va. 360, 370, 68 S.E.2d 641, 647
(1952).

Concerning the trial court’s ruling with
respect to the issue whether Thomas’s injury occurred before or
after he "went over the bank," the issue could be
disposed of easily by reference to an admission made by
Massanutten in a memorandum supporting its motion to set aside
the verdict: "Although we know that the injury must have
occurred after Mr. Hoar fell and went over the edge
, there is
no evidence to show in more detail how or why he hit his head so
as to cause the brain injury." (Emphasis added.)

Aside from the admission, Dr. Broderson’s
testimony showed clearly that Thomas’s injury occurred after
he "went over the bank." Dr. Broderson was asked:
"[W]hen [Thomas] fell forward, where was he in relation to
the edge of the trail?" Dr. Broderson replied that Thomas
"was actually over – slightly over the embankment from the
time he fell."

Furthermore, there is Dr. Broderson’s testimony
that he found what appeared to be "an impact zone with a
log" and a substance that was "[e]ither skin" or
"maybe a little fiber something . . . that looked
like [Thomas] had . . . hit . . .
there." This testimony was sufficient to supply the final
link in the chain of causation from Massanutten’s negligence to
Thomas’s injury, permitting the jury to find from all the
evidence that Thomas sustained his injury by striking the log
after falling to the bottom of the drop-off and not, as
Massanutten hypothesizes, by striking "the hard packed snow
which he would have struck when he tumbled head first at the
edge."

Assumption of Risk and
Contributory Negligence

By way of cross-error, Massanutten contends
that the trial court erred in failing to find as a matter of law
that Thomas assumed the risk of injury and was guilty of
contributory negligence. With respect to assumption of risk,
Massanutten engages in a discussion of the theory of inherent
risks, a theory, as Massanutten acknowledges, "Virginia case
law has not had an opportunity to develop" in skiing cases.
The courts of other jurisdictions, Massanutten says, have applied
the theory and barred recovery for ski injuries where "the
accident resulted from [risks] inherent [in skiing] and not from
negligent operation of the course."
[10]

However, the jury in this case was instructed
according to familiar principles that if Thomas "fully
understood the nature and extent of a known danger, and if he
voluntarily exposed himself to it, he assumed the risk of
injuring himself from that danger" and could not recover for
his injuries. The jury was also instructed that Massanutten had
the duty of proving the defense of assumption of risk by the
greater weight of the evidence.

Massanutten makes no complaint about these
instructions. They constitute the law of the case, and they do
not incorporate the theory of inherent risks. Accordingly, we
will make our decision guided by the principles enunciated in the
instructions independent of that theory.

We agree with the trial court that whether
Thomas assumed the risk of injury was a matter for the jury to
determine. Here, again, Massanutten asserts that there was no
conflict concerning the subject. Yet, there was dispute about
practically every facet of the evidence relating to whether
Thomas fully understood the nature and extent of the danger and
voluntarily exposed himself to it. The standard to be applied in
an assumption of the risk case "’is a subjective one, of
what the particular plaintiff in fact sees, knows, understands
and appreciates.’" Amusement Slides Corp. v. Lehmann,
217 Va. 815, 818-19, 232 S.E.2d 803, 805 (1977) (quoting Restatement
(Second) of Torts
Sect. 496D, Comment c (1965)). These
were matters peculiarly within the province of the jury and
properly left to it for decision.

We take the same view of the question of
contributory negligence. The standard here is an objective one,
whether Thomas acted for his own safety as a reasonable person
would have acted under similar circumstances. See Artrip
v. E.E. Berry Equip. Co.
, 240 Va. 354, 358, 397 S.E.2d 821,
824 (1990). The jury was so instructed. The jury was also
instructed that Thomas had the right to assume the premises were
reasonably safe for his visit unless he knew or should have known
of an unsafe condition or used the premises in a manner exceeding
the scope of the invitation. Considering the conflicting evidence
in this case in light of these principles, we think reasonable
minds could differ on the question whether Thomas acted for his
own safety as a reasonable person would have acted. Hence, the
trial court did not err in submitting the question to the jury.

For the reasons assigned, we will reverse the
judgment of the trial court, reinstate the jury verdict, and
enter final judgment thereon in favor of the Guardian.

Reversed and final judgment.

 

 

[8]

FOOTNOTES:

[1]Ski trails are marked according to their relative
difficulty at each ski resort. Green circles indicate the trails
that are the easiest, blue squares the more difficult, and black
diamonds the most difficult at the particular ski area.

[2] The drop-off was
variously described by the Guardian’s witnesses as "very
steep," "a sheer drop-off," "a 30-foot
cliff," and "a hidden drop-off." A Massanutten
witness said the grade of the drop-off was "only slightly
steeper" than the "steeper area . . . on the
main run."

[3] In the area where the tree line is interrupted, there
are two individual trees just off the edge of the trail, one 25
inches in circumference and the other 22 inches.

[4] The jury was instructed that evidence of Massanutten’s
post-accident erection of a fence on the poles installed
pre-accident "is not received as evidence that [Massanutten] was negligent."

[5] A witness described a "mogul" as "a
mound that is usually created by skiers skiing down a steep area
and cutting small hills into the side of the hill."

[6] "Catching
an edge" refers to the situation that may result when, in
making a turn, a skier tilts his skis and the uphill edge catches
the snow and causes him to lose his balance.

[7] Massanutten cites Smith v. Settle, 254 Va. 348,
492 S.E.2d 427 (1997). There, the plaintiffs elicited expert
testimony to create factual issues of the existence of the
defendant’s duties and then took the position that the same
issues were matters of law, suitable for jury instructions. Here,
the Guardian was unsuccessful in her attempt to elicit expert
testimony and only then took the position that such testimony was
not required. Hence, Smith v. Settle is inapposite.

[8]The significance of Massanutten’s reference to a
"horizon" is that Marston testified a skier would see a
horizon while "going from the right side [of the ski slope] over to the left side" and that the horizon is "a key
giveaway," telling the skier he "can’t continue to see
the terrain because of the steepness of the slope."

[9] Citing Atlantic
Rural Exposition, Inc. v. Fagan
, 195 Va. 13, 77 S.E.2d 368
(1953), Massanutten questions the propriety of the Guardian’s use
of Penniman’s testimony to prove the existence of a duty to warn.
Massanutten says that the testimony "only compared
Massanutten with other facilities and custom and practice"
and that "comparison with what others may do is not the
question." See id. at 25, 77 S.E.2d at 374.
However, it should not escape notice that Massanutten presented
precisely the same character of testimony on the same subject
through its expert witness, Heywood. Hence, Massanutten will not
be heard to complain. See Hoier v. Noel, 199 Va.
151, 155, 98 S.E.2d 673, 676 (1957).

[10] The out-of-state cases cited by Massanutten are Swenson
v. Sunday River Skiway Corp.
, 79 F.3d 204 (1st
Cir. 1996) (applying Maine statute, moguls held inherent risk of
skiing); Connelly v. Mammoth Mt. Ski Area, 45 Cal.Rptr.2d
855 (Cal.Ct.App. 1995) (colliding with ski lift tower inherent
risk of sport); O’Donoghue v. Bear Mt. Ski Resort, 35
Cal.Rptr.2d 467 (Cal.Ct.App. 1994) (knowingly encountering
off-trail obstacles inherent risk of skiing); Atwell v. New
York
, 645 N.Y.S.2d 658 (N.Y.App.Div. 1996) (applying statute
making berm at edge of trail inherent danger of skiing).

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