For reversal and reinstatement -- Chief Justice Hughes, Justices Sullivan and Pashman and Judges Conford, Kolovsky and Carton. For affirmance -- Justice Schreiber. The opinion of the Court was delivered by Sullivan, J. Schreiber, J. (dissenting).
[70 NJ Page 444] This case involves a claim for personal injuries and arises out of a skiing accident which occurred at a ski resort in Vermont. Suit was brought in New Jersey because defendant, who was involved in the accident, is a resident of New Jersey.*fn1 The jury returned a verdict for defendant based on its specific finding that defendant was not negligent. On appeal, the Appellate Division, in an opinion reported at 134 N.J. Super. 99 (1975), reversed and remanded for a new trial holding that the trial judge committed plain error in his charge to the jury as to the
standard of care required of defendant in the circumstances. We reverse and reinstate the judgment for defendant.
The factual situation involved is detailed in the Appellate Division opinion and may be summarized as follows:
On February 21, 1972, plaintiff, an experienced skier, was serving as a first aid advisor on the ski patrol at the Mad River Glen ski resort in Vermont. The facility includes a beginners slope which near its end makes an abrupt left turn. The accident occurred some 60 feet beyond the end of the slope in a flat area where plaintiff and a friend happened to be standing taking pictures. Plaintiff had been working in the first aid room which is adjacent to the area where plaintiff and her friend were standing.
Defendant, then 17 years of age, was a beginning skier who had limited cross-country skiing experience but had never attempted a downhill run. Nor had he ever been to Mad River Glen before. Upon arrival, defendant was sent to the beginners' slope. However, instead of riding the mechanical T-bar lift to the top, defendant confined his first run to the lower portion of the slope. He walked a quarter of the way up the hill and started to ski down, successfully completing the comparatively short run of 30 feet or so until he came to the abrupt left turn. In attempting to negotiate the turn, defendant lost control over his momentum and direction. He saw the two girls ahead of him but because of the short distance remaining, his efforts to regain control and his lack of experience, he did not call out until he was almost upon the girls. Plaintiff attempted to get out of the way but was unable to do so and was struck and knocked down by defendant.
Prior to trial, the court ruled that the law of the case would be the law of Vermont. Counsel have agreed that Vermont law as to this accident is the same as New Jersey's.
The trial court charged the jury that the standard of care applicable in the case was not the same degree of care required of an adult, but rather that degree of care which a reasonably prudent person of that age (defendant was
17 years of age) would have exercised under the same or similar circumstances. Following a side bar conference, the court supplemented its charge with the following:
"All right. Perhaps I didn't charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case."
There was no exception taken to the charge. As heretofore noted, the jury in answer to an interrogatory submitted to it found the defendant not negligent.
Plaintiff appealed solely on the ground that the jury verdict was against the weight of the evidence. The Appellate Division, however, sua sponte, raised the issue of plain error in the court's charge on the applicable standard of care. Following briefing of the issue and oral argument thereon, the Appellate Division reversed and remanded for a new trial finding plain error in the charge. In essence, the Appellate Division held that skiing was an adult activity and that where a child engages in an activity which is normally undertaken by adults, such as skiing, he should be held to the standard of adult skill, knowledge and competence, without allowance for his immaturity. The Appellate Division added that had an adult standard of care been imposed, as it should have been, the jury might well have found defendant negligent.
The Appellate Division determination that defendant, in the circumstances presented, should be held to the standard of care required of an adult was premised on its conclusion that skiing is an activity which may be dangerous to others and is normally undertaken only by adults, and for which adult qualifications are required. See Restatement,
Torts 2d, § 283A, Comment c at 16 (1965). We find nothing in the record to support this conclusion. We think it judicially noticeable that skiing as a recreational sport, save for limited hazardous skiing activities, is engaged in by persons of all ages. Defendant's attempt to negotiate the lower end of the beginners' slope certainly cannot be characterized as a skiing activity that as a matter of law was hazardous to others and required that he be held to an adult standard of conduct. Williams v. Gilbert, 239 Ark. 935, 395 S.W. 2d 333 (1965); Conway v. Tamborini, 68 Ill. App. 2d 190, 215 N.E. 2d 303, (App. Ct. 1966); Bixenman v. Hall, 251 Ind. 527, 242 N.E. 2d 837 (1968); Ranson v. Melegi, 18 Mich. App. 476, 171 N.W. 2d 482 (Ct. App. 1969); 2 Harper and James, The Law of Torts, § 16.8 at 927 (1956); but see Neumann v. Shlansky, 58 Misc. 2d 128, 294 N.Y.S. 2d 628 (Cty. Ct. 1968), aff'd o.b. 63 Misc. 2d 587, 312 N.Y.S. 2d 951 (Sup. Ct. App. Term 1970), aff'd 36 A.D. 2d 540, 318 N.Y.S. 2d 925 (Sup. Ct. App. Div. Second Dept.)
We recognize that certain activities engaged in by minors are so potentially hazardous as to require that the minor be held to an adult standard of care. Driving a motor vehicle, operating a motor boat and hunting would ordinarily be so classified. However, as to the activities mentioned, New Jersey law requires that the minor must be licensed and must first demonstrate the requisite degree of adult competence. See annotation, "Age of minor operator of automobile or other motor-powered vehicle or craft as affecting his primary or contributory negligence," 97 A.L.R. 2d 872 (1964).
We find that the applicable standard of care, correctly charged by the trial court, was that generally applicable to minors. Cf. Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345, 353 (1959). See Parker v. Gunther, 122 Vt. 68, 164 A.2d 152 (1960); Johnson's Adm'rs v. Rutland R.R. Co., 93 Vt. 132, 106 A. 682 (1919). The ...