On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, Bilder and Baime. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant Great American Recreation, Inc. (improperly pleaded as Vernon Valley Ski Area, Inc.) appeals from a judgment of the Law Division which was entered on a molded jury verdict that awarded plaintiff Michael Reisman damages in the total amount of $9,795.00 in this personal injury negligence action.
The events which gave rise to this action took place at defendant's Vernon Valley Ski Resort. Plaintiff, who was admittedly a novice skier, was skiing alone on a beginner's slope. He was proceeding slowly and cautiously down the trail in a tight serpentine or "S turn" pattern when another skier crashed into him. As a result of this collision, plaintiff was knocked to the ground and seriously injured. The fact of plaintiff's injury and the fact that it resulted from a collision with another skier were not, and are not, seriously disputed. Instead, the pivotal issue, both at trial and on appeal, revolves around the nature of the duty, if any, that defendant owed to plaintiff concerning the elimination of the risk
which resulted in his injuries; namely a drunken and dangerous skier on its slopes.
The existence of such a duty on defendant's part relies primarily upon defendant's awareness of the danger that this skier presented. Regarding this issue, various statements of defendant's employees were critical to plaintiff's case. Specifically, the lift operator at the bottom of the slope on which plaintiff was injured and several ski patrollers, which plaintiff encountered in the resort's infirmary, rendered statements to plaintiff, or in his presence, which clearly demonstrated that defendant was aware of the danger presented by this skier. Particularly, these individuals revealed to plaintiff that the skier who had collided with him was named "Mike"; that "Mike" was an employee of defendant; that "Mike" was drunk, and that "Mike" had previously had his lift ticket taken away and had been asked to leave the slopes for skiing drunk.
Plaintiff clearly recognized these individuals as employees of defendant due to the unique outerwear in which they were clad. He testified that the lift operator's jacket was at least partially responsible for his identification of that person as an employee of defendant, although he was unable to remember any particular details about that jacket. However, plaintiff recalled vividly the details of the ski patrollers' jackets. He noted that they said "Ski Patrol" on them, and that they also had a red cross on the back. Defendant's own witness, Elizabeth Ann Masters, the Resort's Operations Manager, corroborated plaintiff's story in this regard by offering a description of the ski patrollers' and lift operators' uniforms which was entirely consistent with the one given by plaintiff. Specifically, she testified that defendant's ski patrollers wear blue jackets which say "National Ski Patrol" and have a red cross on the back, and defendant's lift operators wear dark navy windbreakers over their ski clothing that say "The Great Gorge Resort Staff" on the back in white letters.
This action was instituted on plaintiff's behalf to recover damages for the injury that he had sustained on the theory that
defendant had breached its duty to make its ski area reasonably safe for customers such as himself. In attempting to establish this breach of duty, plaintiff sought to rely heavily on the aforementioned statements of defendant's employees concerning "Mike," the skier that had collided with him. Specifically, he sought to use these statements to establish "Mike's" drunkenness and dangerousness, as well as defendant's awareness of these factors. Defendant objected to the admission of these statements on hearsay grounds. Following a Rule 8 hearing, the trial court concluded that although the statements constituted hearsay, they fit within the exception for vicarious admissions contained in Evid.R. 63(9)(a), and thus, would be admitted into evidence. The trial court indicated further that it would admit any included hearsay which was existent within these statements, but emphasized that this evidence was "[q]uite certainly . . . subject to attack by way of cross-examination."
However, defendant declined to accept the trial court's invitation to discredit or disprove, by way of cross-examination of plaintiff, the statements which it found to be objectionable. Instead, defendant waited until the presentation of its own case in chief, and then focused solely on establishing that "Mike" was no longer its employee on the date of the incident. Toward this end, defendant relied on the testimony of Ms. Masters that "Mike" was actually a person named Michael Ardilla, that Mr. Ardilla had previously been employed by defendant as a lift operator, but that he was not so employed at the time of the accident. Instead, Ms. Masters maintained that "Mike" was merely a skiing customer at the time of the collision with plaintiff, having been terminated as an employee four days prior to the concerned incident.
At the Conclusion of the proofs, defendant moved for a directed verdict, contending that the terms of the New Jersey Ski Statute, N.J.S.A. 5:13-1, et seq., served as a bar to plaintiff's action. Specifically, defendant maintained that "Mike," as another skier, represented nothing more than an inherent risk of the sport of skiing; one which plaintiff should be held to have assumed. The
trial court denied defendant's motion, reasoning, in part, that "taking the evidence in the light most favorable to [p]laintiff, [this case] would be the kind . . . which would not fall within the contemplation of the [Ski] [S]tatute." The jury assessed damages in the total sum of $10,000, and apportioned the parties' negligence at 80% for defendant and 20% for plaintiff. Defendant's motion for a judgment notwithstanding the verdict was denied, and the trial court thereupon entered judgment on the molded jury verdict in favor of plaintiff. Defendant appeals.
Defendant contends that the trial court erred in failing to grant its motion for a directed verdict at the close of all of the evidence, and its subsequent motion for a judgment notwithstanding the jury's verdict, since it was entitled to such relief based on the Ski Statute, N.J.S.A. 5:13-1, et seq. We disagree. Under the rather accommodating standard of review set forth in Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969), it is perfectly clear that the trial court properly denied defendant's motions for a directed verdict and for a judgment notwithstanding the jury's verdict.
In setting forth the legislative findings and the purpose of the Ski Statute, N.J.S.A. 5:13-1 provides:
a. The Legislature finds that the sport of skiing is practiced by a large number of citizens of this State and also attracts to this State large numbers of nonresidents, significantly contributing to the economy of this State and, therefore, the allocation of the risks and costs of skiing are an important matter of public policy.
b. The purpose of this law is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery. [Emphasis added].
By way of further background to the Ski Statute, the Assembly Judiciary, Law, Public Safety and Defense Committee Statement which follows N.J.S.A. 5:13-1 announced, in pertinent part, that:
The purpose of this bill is to establish in statutory law the responsibilities and liabilities of ski area operators and skiers with respect to skiing accidents. These responsibilities and liabilities are currently covered under the general law of negligence, which is primarily case law. A Vermont case, Sunday v. Stratton, [136 Vt. 293, 390 A.2d 398 (1978),] has caused considerable concern nationwide among ski area operators and their insurers over the potential liability of ski area operators for skiing injuries. In the Sunday case, the court held that the doctrine of assumption of risk as a defense which completely barred recovery in negligence cases was no longer applicable because of the adoption of a comparative negligence statute. Prior to the ...