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Brett v. Great American Recreation

June 13, 1996

PATRICK BRETT AND ELISA RAMUNDO, PLAINTIFFS-RESPONDENTS,
v.
GREAT AMERICAN RECREATION, INC., DEFENDANT-APPELLANT, AND STONEHILL PROPERTY OWNERS ASSOCIATION, INC., AND HOTEL SECTION CONDOMINIUM COUNCIL, INC., DEFENDANTS AND THIRD-PARTY PLAINTIFFS, AND RUDOLPH MAURIZZI, DEFENDANT AND THIRD-PARTY PLAINTIFF-RESPONDENT, V. DENISE MCDADE AND NANCY MORGAN, THIRD-PARTY DEFENDANTS. KAREN FURMAN, PLAINTIFF-RESPONDENT, V. GREAT AMERICAN RECREATION, INC., DEFENDANT-APPELLANT, AND STONE HILL PROPERTY OWNERS ASSOCIATION, INC., AND HOTEL SECTION CONDOMINIUM COUNCIL, INC., DEFENDANTS AND THIRD-PARTY PLAINTIFFS, V. RUDOLPH MAURIZZI, THIRD-PARTY DEFENDANT-RESPONDENT. DONALD PISARCIK, PLAINTIFF-RESPONDENT, V. GREAT AMERICAN RECREATION, INC., DEFENDANT-APPELLANT, AND STONE HILL PROPERTY OWNERS ASSOCIATION, INC., AND HOTEL SECTION CONDOMINIUM COUNCIL, INC., DEFENDANTS, AND RUDOLPH MAURIZZI, DEFENDANT-RESPONDENT. MEGAN RUSSELL, PLAINTIFF-RESPONDENT, V. GREAT AMERICAN RECREATION, INC., DEFENDANT-APPELLANT, AND STONE HILL PROPERTY OWNERS ASSOCIATION, INC., AND HOTEL SECTION CONDOMINIUM COUNCIL, INC., DEFENDANTS AND THIRD-PARTY PLAINTIFFS, AND RUDOLPH MAURIZZI, THIRD-PARTY DEFENDANT-RESPONDENT, AND LISA CARMELITANO AND KAREN FURMAN, THIRD-PARTY DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 279 N.J. Super. 306 (1995).

The opinion of the Court was delivered by Stein, J. Chief Justice Wilentz and Justices Handler, Pollock, O'hern, Garibaldi and Coleman join in Justice STEIN's opinion.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

PATRICK BRETT, ET AL. V. GREAT AMERICAN RECREATION, INC., ET AL. (A-51-95)

Argued November 28, 1995 -- Decided June 13, 1996

STEIN, J., writing for a unanimous Court.

This appeal addresses the scope and proper application of the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -11 (Ski Statute).

Patrick Brett, Karen Furman, Donald Pisarcik, Megan Russell, and Elisa Ramundo (plaintiffs) sued Great American Recreation, Inc., among others, for compensation for serious injuries they sustained in an accident while tobogganing on a snow-covered hill that was part of a ski resort operated by Great American. The accident occurred on the Bunny Buster Trail, after the resort had closed. In the late evening, the lights on the trail had been illuminated to enable Great American employees to prepare the trail for the next day's skiers. Plaintiffs, and others in their group, decided to toboggan down that trail. With plaintiffs on board, the toboggan travelled over a flattened snow fence, over the edge of a twenty-foot dirt embankment onto a parking lot below. One of the six who were on the toboggan fell off before it dropped to the edge, thereby escaping injury. Plaintiffs were propelled off the embankment, onto the parking lot, and into a utility pole.

The Ski Statute sets forth certain duties for ski-resort "operators" and for "skiers" as those terms are defined in the statute. Operators must post signs or otherwise distribute information on the difficulty and condition of the ski trails and must remove, as soon as practical, "obvious, man-made" hazards. Skiers, defined in some circumstances to include tobogganers, must know the limits of their abilities, ski under control, and ski only on designated trails. The statute also provides that skiers assume risks inherent in their sport.

Plaintiffs sued Great American, the landowner, and others. Except for Great American, all other defendants were either dismissed from the case or had settled prior to trial. Great American moved for involuntary dismissal at the close of the plaintiffs' case. In support of that motion, Great American argued that the Ski Statute applied to plaintiffs' claims; that plaintiffs were skiers as defined by the statute; that plaintiffs had an obligation to know the limits of their abilities and to maintain control over their course and speed; and that plaintiffs assumed the risk of the hazard they encountered. Great American also contended that plaintiffs were trespassers and that its common-law duty to plaintiffs was merely to refrain from willfully injurious acts. Great American argued that it owed plaintiffs none of the statutory duties of operators, and that, pursuant to the common-law standard of trespass, plaintiffs were precluded from bringing suit.

Plaintiffs did not contest that the Ski Statute applied, and the trial court held that it governed the case. The trial court denied Great American's motion to dismiss, finding that if the Legislature had intended to exclude trespassers from the reach of the Ski Statute, it would have done so expressly. The court also held that the record was sufficient to create a jury question of whether plaintiffs were invitees; however, even if plaintiffs were not invitees, the jury could find that they were persons to whom Great American owed a duty under the statute. Turning to the scope of the operator's duty, the trial court found that the statutory obligation to remove obvious, man-made hazards can include a duty to eliminate or lessen the danger. The court held that a reasonable jury could find that the configuration of the Bunny Buster slope could constitute an obvious, man-made hazard. A similar motion made at the close of all evidence was also denied.

In formulating the jury instruction, the trial court noted that there was agreement that, for the purposes of the Ski Statute, plaintiffs were to be regarded as skiers and that Great American was an operator. The court charged the statutory duties, including assumption of risk, and informed the jury that it could consider the expert testimony to determine whether a hazard existed. The court also instructed the jury that the Ski Statute displaced the common-law standard of care and that it could apportion the verdict by any comparative negligence of plaintiffs. The jury found plaintiffs 22% negligent, Great American 54% negligent, and the landowner 24% negligent, and awarded damages to all plaintiffs in the amount of $2,475,000.

On appeal, Great American renewed its argument that the Ski Statute should be integrated with the common law of premises liability to limit its duty to plaintiffs to a standard less burdensome than the common law standard for trespassers. For the first time, Great American made the alternative claim that the Ski Statute should not have been applied to these facts because the ski area was closed when the accident occurred, and because the statutory definitions of "operator" and "skiers" apply only if the skier pays to ski. Under either theory, Great American claimed that it was entitled to a jury instruction charging it with no greater duty than that imposed by the common law with respect trespassers, and that failure to so charge was reversible error. The Appellate Division rejected these arguments, agreeing with the trial court that the Ski Statute applied; approving the trial court's interpretation of the various duties the statute imposed; affirming the trial court's implicit holding that the design of the slope could have constituted an obvious, man-made hazard; and noting that a simple warning of the dangers of tobogganing could have constituted removal of that hazard. The Appellate Division also rejected Great American's argument that, as trespassers, plaintiffs would have been barred from recovery under the common law. The court concluded that if the risk of injury was foreseeable, Great American owed plaintiffs a non-delegable duty of care.

The Supreme Court granted certification.

HELD: The Ski Statute, N.J.S.A. 5:13-1 to -11, does not apply in this case. However, Great American Recreation, Inc. is barred by the doctrine of invited error from contesting the application of that statute to this case. Having been persuaded to apply the Ski Statute, the trial court and the Appellate Division correctly interpreted its provisions. The jury charge was appropriate and the record provides ample support for the jury's findings.

1. The Ski Statute codifies the respective duties and liabilities of skiers and resort operators. Both the duties imposed and the underlying public policy make clear that the Ski Statute's codification of rights and remedies applies only between parties defined as skiers or ski-area operators. The Legislature intended to limit the class of operators, and thus the reach of the law, to persons in the business of providing a place to engage in certain types of winter sports, and defined their duties and responsibilities only in relation to persons who engage in those sports and pay for the privilege to do so. The Legislature did not intend to pose a statutory duty on operators to post trail signs or remove hazards for sports foreign to the operator's business purpose. (pp. 13-18)

2. The Legislature incorporated the concept of foreseeability by specifying that an operator's duty extends to obvious, man-made hazards; operators have no duty with regard to inherent risks of skiing. If skiers, in the course of breaching their statutory duty to ski in control, are injured by a hazard that is not inherent and which the operator had a duty to remove, the comparative negligence statute controls and the relative fault of the parties will be apportioned. Furthermore, where the Ski Statute properly applies, the Legislature intended completely to displace the common law. (pp. 19-24)

3. Great American does not operate a tobogganing resort nor does it accept money from persons who wish to toboggan on its premises. Moreover, plaintiffs did not pay to toboggan. Thus, the Ski Statute does not apply because, according to the terms of the statute, Great American was not an operator as to plaintiffs and plaintiffs were not skiers in respect of Great American. Thus, the Ski Statute does not apply. Nevertheless, Great American is barred by the doctrine of invited error from contesting that issue. The doctrine of invited error precludes a disappointed litigant from arguing on appeal that an adverse decision below was the product of error when that party urged the lower court to adopt the proposition that it now alleges to be error. (pp. 24-28)

4. Having been persuaded to apply the Ski Statute, the trial court and the Appellate Division correctly interpreted its provisions and, accordingly, the judgment below must be upheld. The jury charge correctly directed the discretion of the jury and the record provides ample support for its findings. The jury had ample grounds to find that the hazard was not inherent. The jury could have properly weighed all of the relevant factors to find that there was an obvious man-made hazard that Great American could have removed but did not. Furthermore, it cannot be reasonably contested that plaintiffs breached their statutory duties to maintain control and not attempt a slope that was beyond their abilities. Based on the record presented, the jury's verdict was reasonable. (pp. 28-31)

5. The doctrine of invited error would not be applied if it would result in a fundamental miscarriage of Justice. However, this issue need not be addressed because the verdict would have been the same had the common law been charged. The common-law duty Great American owed to plaintiffs would, at a minimum, have encompassed a duty to remove obvious, man-made hazards as soon as practicable. The duty owed to plaintiffs, the obviousness to defendant of the danger, and plaintiffs ability to perceive the risks to themselves would have been considered by the jury in deciding whether the slope constituted a dangerous hazard. Any prejudice to Great American occurring by virtue of the trial court's application of the Ski Statute with Great American's acquiesce was insufficient to require a reversal. (pp. 31-35)

Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE STEIN's opinion.

The opinion of the Court was delivered by STEIN, J.

This appeal requires us to consider the scope and proper application of the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -11 (Ski Statute). Plaintiffs sued for compensation for injuries they sustained in an accident while tobogganing on a snow-covered hill that was part of a ski resort operated by defendant. The trial court instructed the jury to apply the Ski Statute, and the jury returned a verdict for plaintiffs. The Appellate Division affirmed, 279 N.J. Super. 306 (1995), concluding that the Ski Statute governed and that it was correctly interpreted by the trial court. We granted certification. 141 N.J. 97 (1995).

I

Plaintiffs, Patrick Brett, Karen Furman, Donald Pisarcik, Megan Russell, and Elisa Ramundo, were five of a larger group of college friends, then twenty and twenty-one years old, who had travelled to Vernon Township to spend a winter weekend at a condominium there. The condominium belonged to defendant Rudolph Maurizzi, an uncle of one of the group. It is one of a number of condominiums built along the slope of Great Gorge North on either side of a vacant strip of hillside about a thousand feet long. During the winter, the vacant strip is a ski trail known as the Bunny Buster. The trail is part of the ski resort operated by defendant Great American Recreation, Inc. (Great American). Great American operates the trail pursuant to an easement from defendants Stonehill Property Owners Association, Inc. and Hotel Section Condominium Council, Inc. (Stonehill), who own the land.

Members of the group arrived on Friday at different times. Furman, and third-party defendants Denise McDade and Lisa Carmelitano (Maurizzi's niece) arrived early, and spent part of the day skiing at the resort. As the afternoon advanced, the trails were illuminated by artificial lights. When the resort closed for the night, those lights were turned off. The skiers returned to the condominium over the ski trails, crossing the Bunny Buster trail in the dark.

Earlier that day, another member of the group had discovered a plastic toboggan that Maurizzi stored in his condominium with other snow equipment. By evening, all the members of the party had arrived. Between ten and eleven o'clock that night, someone noticed that the lights on the Bunny Buster trail had been turned back on. Great American had illuminated the trail to enable its employees to groom it for the next day's skiers. Observing the lighted slope, the group decided to use Maurizzi's toboggan on the trail. There was testimony at trial that other people were also present and using the trail for ...


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