Sunday v. Stratton Corp.
1978 Vt. LEXIS 739, 390 A.2d 398, 136 Vt. 293 (1978)
Rule of Law:
The doctrine of primary assumption of risk does not bar recovery where a ski resort, through its extensive maintenance and advertising of safety, creates a duty to eliminate a hidden danger on a novice trail, as such a hazard is not an inherent or obvious risk of the sport.
Facts:
- On February 10, 1974, plaintiff Sunday, then just under 21, was skiing as a paying patron at defendant Stratton Corporation's ski resort in Stratton, Vermont.
- Sunday was a novice skier traversing a novice trail, the 'Interstate', which Stratton Corporation advertised as meticulously groomed with a 'top quality cover'.
- Stratton Corporation used sophisticated equipment to maintain its trails, aiming for a 'perfect surface' and removing stumps and brush, raking, fertilizing, and cutting any new growth.
- While skiing at a slow speed, Sunday's ski became entangled in a small bush or clump of brush, approximately 8" by 20", located 3-4 feet from the side limits of the traveled portion of the trail.
- The brush was concealed by loose snow and was unseen by Sunday prior to the accident, but was observed by him and his companion shortly after.
- Sunday suffered injuries that resulted in permanent quadriplegia.
Procedural Posture:
- Plaintiff Sunday sued defendant Stratton Corporation in the trial court (jury demanded by both parties) for negligence, alleging negligent trail maintenance and failure to warn of hidden dangers.
- The jury returned a verdict for Sunday for $1,500,000, finding Stratton Corporation 100% negligent, and judgment was entered for that amount.
- Stratton Corporation moved for a directed verdict based on the doctrine of assumption of risk at the close of Sunday's case and again at the close of all evidence, which the trial court denied.
- Stratton Corporation subsequently moved for judgment notwithstanding the verdict (n.o.v.), which the trial court denied.
- Stratton Corporation moved for a mistrial due to a newspaper article published during the trial, which the trial court denied.
- Stratton Corporation moved to set aside the verdict as against the weight of the evidence, which the trial court denied.
- Stratton Corporation moved for a new trial, arguing the damages awarded were excessive, which the trial court denied.
- Stratton Corporation appealed these adverse rulings to the Supreme Court of Vermont.
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Issue:
Does the doctrine of primary assumption of risk, which negates a defendant's duty of care, preclude a paying novice skier from recovering for injuries caused by a hidden clump of brush on a meticulously maintained ski trail, even in a jurisdiction with comparative negligence?
Opinions:
Majority - Larrow, J.
No, the doctrine of primary assumption of risk does not preclude a paying novice skier from recovering for injuries caused by a hidden clump of brush on a meticulously maintained ski trail. The Court affirmed the jury's verdict, distinguishing between 'primary' and 'secondary' assumption of risk. Primary assumption of risk applies when the defendant owes no duty to the plaintiff because the danger is inherent and obvious in the activity. However, in this case, the hidden brush on a groomed novice trail was not an inherent danger, particularly given Stratton Corporation's extensive maintenance efforts and advertising of a safe, meticulously groomed surface, which created an expectation of safety for novice skiers. Citing Garafano v. Neshobe Beach Club, Inc., the Court reiterated that a business owes a duty to keep its premises in a safe condition and to warn of hidden dangers known to the defendant but not reasonably apparent to the plaintiff. The Court found that the defendant's own testimony about its advanced grooming techniques, making such growth 'impossible,' undermined its claim that the brush was an inherent risk. The Court also held that a prior federal case, Wright v. Mt. Mansfield Lift, Inc., which found a snow-covered stump on an intermediate trail an inherent risk, was not binding and distinguishable due to the vastly changed nature of the ski industry and improved grooming techniques. Where primary assumption of risk does not apply (i.e., where a duty exists and is breached), the issue falls under comparative negligence, and the plaintiff assumes the defendant will exercise reasonable care. The Court also found no reversible error in the trial court's jury instructions, denial of a mistrial, or denial of motions to set aside the verdict as against the weight of the evidence or for excessive damages.
Analysis:
This case significantly clarifies the application of assumption of risk in negligence claims, particularly in recreational activities. It narrows the scope of 'primary assumption of risk' by emphasizing that a defendant's duty of care can be heightened by their maintenance practices and public representations of safety, effectively limiting what can be considered an 'inherent risk.' The ruling prevents businesses from relying on assumption of risk as an absolute bar when their own actions, such as meticulous grooming and advertising, create an expectation of safety that a hidden hazard then breaches. This decision reinforces the importance of a business's duty to its patrons and harmonizes 'secondary assumption of risk' with comparative negligence principles.
