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Lipton v. Mountain Creek Resort, Inc.

United States District Court, D. New Jersey

September 23, 2019



          KEVIN MCNULTY. U.S.D.J.

         Before 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.

         On 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 reply.

         For the 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.

         The ski 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 deliberations.

         I. Facts[1]

         Mountain 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, ¶ 4)

         It is 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.)

         At 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, ¶ 20)

         The 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)

         As a result of the incident, Benjamin Lipton sustained significant injuries, including severe brain and facial injuries.

         On 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' injuries. [Id.)

         II. Discussion

         A. New Jersey ski statute

         The issues in both motions presume some background knowledge of New Jersey's ski statute.

         The ski 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)).

         New 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. §5:13-1(b).

         As a 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.

         An "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).

         A ski 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.

         Nevertheless, "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.

         B. Motion to Exclude Penniman Expert Testimony

         On 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)

         Mountain 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 ...

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