United States District Court, D. New Jersey
BENJAMIN LIPTON, A MINOR BY HIS GUARDIAN A.D. LITEM, STEVEN LIPTON AND STEVEN LIPTON AND TALIA LIPTON, INDIVIDUALLY, Plaintiffs,
MOUNTAIN CREEK RESORT, INC., AND/OR ABC CORP. 1-10, FICTITIOUS CORPORATION WHOSE NAMES ARE NOT YET KNOWN T/A MOUNTAIN CREEK, JOHN DOES 1-5 FICTITIOUS PERSONS WHOSE NAMES ARE NOT YET KNOWN AND JANE DOES 1-5 FICTITIOUS PERSONS WHOSE NAMES ARE NOT YET KNOWN, Defendants
the Court is the motion for summary judgment (DE 58) of
Defendant Mountain Creek Resort, Inc. ("Mountain
Creek"). Mountain Creek also moves to exclude the
testimony of Plaintiffs' liability expert, Richard
Penniman. Mountain Creek contends that Penniman is not fit to
testify because he failed to consider the New Jersey ski
statute, N.J. Stat. Ann. § 5:13-1, et seq. (the
"ski statute") when drafting his expert report. For
lack of a qualified liability expert, Mountain Creek argues,
it must be awarded summary judgment because the Plaintiffs
will not be able to sustain their burden of proof. In the
alternative, Mountain Creek argues that Benjamin Lipton
assumed the inherent risks of skiing and that therefore
Plaintiffs' claims cannot succeed.
April 1, 2019, Plaintiffs submitted their opposition to
Mountain Creek's motion for summary judgment and motion
in limine. (DE 62) Mountain Creek did not file a
reasons outlined herein, Mountain Creek's motion to
exclude Mr. Penniman's testimony will be denied in part
and granted in part. In particular, Mr. Penniman will be
precluded from opining on the standards of New Jersey's
ski statute. Mountain Creek's motion for summary
judgment, however, is denied.
statute requires the parties to negotiate a virtual slalom
course of issues, pursuant to which liability may switch back
and forth between them. Counsel are advised that, in
preparation for trial, they should devote particular
attention to the jury instructions and the verdict form,
which will be necessary to channel the jury's
Creek operates a ski resort located in Vernon, New Jersey. On
January 25, 2013, Benjamin Lipton was skiing at Mountain
Creek when he sustained severe injuries as a result of a
collision. At the time, Mr. Lipton was thirteen years old and
had been skiing for approximately ten years. (DE 62 at 31-32,
undisputed that the incident occurred on a trail at Mountain
Creek known as the "Big Bear trail." (DE 58-3 at
12, ¶ 4) The Big Bear trail is intended for experienced
skiers. (Id.) The trail is rated as a black-diamond
trail, signifying that it is considered a "most
difficult rated trail" at Mountain Creek. (Id.)
approximately 7:55 pm, Mr. Lipton was skiing on Big Bear
trail alone when he was observed by witnesses approaching an
area of the trail where eight snowmaking tower guns and other
snowmaking equipment were located. (DE 58-3 at 12-13, ¶
5; DE 62 at 38, ¶ 5) Mr. Lipton was observed coming down
a hill on the trail, at which point he skied over a snowbank
and then came to a stop near the fourth snowmaking tower gun.
Plaintiffs contend that the snowbank Mr. Lipton skied over
was a "sudden, blind-drop off." (DE 62 at 35,
parties agree that Benjamin Lipton was found unconscious near
the fourth snowmaking tower gun. Plaintiffs more specifically
allege that he struck an unprotected "'metal
pipe' which was 'sticking out of the
ground."' (DE 62 at 32, ¶ 8) Plaintiffs dispute
the function of this metal pipe, questioning whether it was
necessary for snowmaking purposes. (DE 62 at 24-26)
result of the incident, Benjamin Lipton sustained significant
injuries, including severe brain and facial injuries.
August 13, 2013, Plaintiffs filed a lawsuit against Mountain
Creek. Mountain Creek, they allege, negligently failed to
properly guard or warn against certain man-made hazards on
the Big Bear trail and breached its duties under the New
Jersey ski statute. (Compl. ¶ 4) As a result, the
Liptons allege, Mountain Creek is liable for Plaintiffs'
New Jersey ski statute
issues in both motions presume some background knowledge of
New Jersey's ski statute.
statute operates against a backdrop of common law negligence.
"Actions against a ski operator for personal injuries
sustained by a skier on its ski slope are governed by
common-law negligence principles unless" the ski statute
applies. Brett v. Great Am. Recreation, Inc., 279
N.J.Super. 306, 314 (App. Div. 1995), affd, 144 N.J.
479 (1996) (citing Reisman v. Great Am. Recreation,
Inc., 266 N.J.Super. 87');">266 N.J.Super. 87, 97 (App. Div. 1993)).
Jersey's ski statute was enacted in 1979. "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." N.J. Stat. Ann.
threshold matter, a court must determine whether the ski
statute applies to the exclusion of the common law. Whether
the statute permits liability turns on whether operators and
skiers have complied with their statutory responsibilities.
If, for example, it is determined that a skier was injured
because she violated one or more statutory duties or is
deemed to have assumed one or more of the stated risks of
skiing, the ski statute applies, and liability is barred.
"operator, " such as Mountain Creek, is any
"person or entity who owns, manages, controls or directs
the operation of an area where individuals come to ski."
Id. § 5:l3-2(a). An operator is required,
inter alia, to "[e]stablish and post a system
generally identifying slopes and trails and designating
relative degrees of difficulty thereof; and to make generally
available to skiers information in the form of trail maps or
trail reports" and "[r]emove as soon as practicable
obvious, man-made hazards." Id. §
5:l3-3(a)(3). A ski operator is expressly exempt from
liability, however, for its failure to remove certain
man-made hazards that are necessary for the normal operation
of a ski resort:
No operator shall be responsible to any skier or other person
because of its failure to comply with any provisions of
subsection 3.a. if such failure was caused by . . . the
location of man-made facilities and equipment necessary for
the ordinary operation of the ski area, such as
transportation or grooming vehicles ... or any other object
or piece of equipment utilized in connection with the
maintenance of trails, buildings or other facilities used in
connection with skiing.
Id. § 5:13-3(b). However, if an operator
"has knowledge of the failure to [remove man-made
hazards]" or "should have reasonably known of such
condition and having such knowledge has had a reasonable time
in which to correct [the] condition, " an operator can
be found liable for a skier's injuries. Id.
§ 5:l3-3(d). The ski statute also impliedly contemplates
that a ski operator will inspect its slopes, "post
suitable warnings of danger, " and reduce the risk of
harm to the extent practicable. Brett, 279
N.J.Super. 317; Brough v. Hidden Valley, Inc., 312
N.J.Super. 139, 147 (App. Div. 1998).
operator's statutory responsibilities do not extend to
risks that are "inherent" in the sport.
Brough, 312 N.J. Super, at 147; Brett, 677
A.2d at 715 ("In the skiing context, an inherent risk is
one that cannot be removed through the exercise of due care
if the sport is to be enjoyed."). It is the skier who
"is deemed to have knowledge of and to assume the
inherent risks of skiing." N.J. Stat. Ann. §
5:13-5. A skier's assumption of the risk is a complete
defense. Id. §5:13-6.
"a skier is not barred from suing an operator based upon
assumed risks or for injuries to which he contributed if the
operator violated his duties or responsibilities under the
[ski statute]." Murray v. Great Gorge Resort,
Inc., 360 N.J.Super. 395, 402, 23 A.2d 101');">823 A.2d 101, 105 (Law.
Div. 2003) (citing Assembly Judiciary, Law, Public Safety
and Defense Committee, Statement to Assembly, No. 1650
(Nov. 20, 1978)); see also N.J. Stat. Ann. §
5:13-6 ("The assumption of risk set forth in section 5
shall be a complete bar of suit . . . unless an operator has
violated his duties or responsibilities under this act.
..."). If it is shown that the ski operator violated its
duties, a plaintiff may recover under principles of
comparative negligence. N.J. Stat. Ann. § 5:13- A skier
likewise must abide by statutory duties. For example,
"Every skier shall maintain control of his speed and
course at all times, and shall stay clear of any snow
grooming equipment, any vehicle, any lift tower, and any
other equipment on the mountain." Id. §
5:l3-4(c). "Each skier is assumed to know the range of
his ability, and it shall be the duty of each skier to
conduct himself within the limits of such ability, to
maintain control of his speed and course at all times while
skiing, to heed all posted warnings and to refrain from
acting in a manner which may cause or contribute to the
injury of himself or others." Id. §
5:13-5. A minor must also "wear a securely fitted
protective helmet." Id. § 5:13-12(a).
"Failure to adhere to the duties set out in sections 4
and 5 shall bar suit against an operator to compensate for
injuries resulting from skiing activities, where such failure
is found to be a contributory factor in the resulting injury,
unless the operator has violated his duties or
responsibilities under the act, " in which case a
plaintiff may recover under comparative negligence
principles. Id. § 5:13-6.
Motion to Exclude Penniman Expert Testimony
March 15, 2016, Plaintiffs served the report of liability
expert Richard Penniman. Mr. Penniman has over thirty years
of experience working in the ski industry as a ski patrol
director, ski patroller, and director of skier services. (DE
62 at 33, ¶ 14) Mr. Penniman also has been a ski
consultant whose "work includes trail safety and design,
mountain operations management, and employee training."
(DE 62-1 at 82)
Creek alleges that the opinions of Mr. Penniman must be
barred because he fails to address the ski statute and
therefore cannot opine on liability. (Id. at 10)
Relying on Butler v. Acme Markets, Inc., 89 N.J.
270, 283 (1982), Mountain Creek contends that New Jersey law
requires expert testimony to prove liability where "a
defendant owed the plaintiff a duty to exercise reasonable
care." (DE 58-3 at 15-16) Once Penniman's testimony
is excluded, Mountain ...