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H. Hiibschman v. City of Valdez et al (12/6/91), 821 P 2d 1354
<![CDATA[
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
HEATHER HIIBSCHMAN, by and )
through her guardian, DEBRA )
WELCH, and DEBRA WELCH, ) Supreme Court Nos. S-3678
) and S-3679
Appellants and )
Cross-Appellees, ) Superior Court No.
) 3VA-87-18 Civil
v. )
)
CITY OF VALDEZ and VALDEZ ) O P I N I O N
OFFICE BUILDING, INC., d/b/a/ )
VALDEZ BOTTLE STOP LIQUOR )
STORE, )
) [No. 3783 - December 6, 1991]
Appellees and )
Cross-Appellants. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Valdez,
Douglas J. Serdahely and Rene J. Gonzalez, Judges.
Appearances: Roger W. DuBrock, Law
Office of Roger W. DuBrock, Anchorage, for
Appellants and Cross-Appellees. Donna P.
Walker, James M. Seedorf, Hughes, Thorsness,
Gantz, Powell & Brundin, Anchorage for
Appellee and Cross-Appellant, City of Valdez.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
INTRODUCTION
Heather Hiibschman sued the City of Valdez in tort for
injuries incurred as she went over a ski bump-jump at a city ski
hill. The superior court granted part of the City's summary
judgment motion and let part of Hiibschman's case go to the jury,
which found against her. She appeals and the City cross-appeals,
both primarily questioning the interpretation of Alaska's 1980
Limitations on Claims Arising From Skiing Act ("Ski Act"), AS
09.65.135.1
STATEMENT OF FACTS
Salmonberry Ridge, the only downhill ski facility in
Valdez, opened to the public in January 1986. It is considered a
beginner's hill, measuring 1,300 feet from top to bottom with a
208 foot vertical rise. From the base of the hill, one can view
almost the entire hill.
Several bump-jumps could be found on the hill at the
time of Hiibschman's accident.2 The jump at issue was located at
the lower left side of the hill if one looked at the hill from
its bottom. The jump was located on a relatively flat area of
the hill, although there was a steeper area just uphill of the
jump. The jump was estimated to be from two feet to four feet in
height. It was the only jump in that area of the hill and was a
"focal point"of the run on that side of the hill.
On March 13, 1986, Heather Hiibschman, a fifteen year
old, went skiing at Salmonberry Ridge. Hiibschman was a beginner
skier. She had gone downhill skiing approximately six to ten
times prior to the accident, although she had also cross-country
skied. Prior to March 13, Hiibschman had been skiing at
Salmonberry every day of the week.
Hiibschman had never taken the jump in question. She
said, "Most of the time I just didn't feel like I was ready . . .
I couldn't find anybody who would teach me, show me how to do it,
and I wanted to be shown how to do it before I went and just
tried it myself." The day of her accident, she decided to try
the jump. Hiibschman watched at least four of her friends take
the jump. While they were slightly more advanced than
Hiibschman, she also observed people of her ability level go off
the jump. Her friend Aaron Kelly specifically showed her how to
ski the jump. He advised her, "stay down, stay forward."
Hiibschman stated that she felt fairly familiar with the approach
and the takeoff, gaining that familiarity from watching people as
she skied beside them, looking at the jump, and reading ski
magazines to learn what she was supposed to do.
Hiibschman stood in line to take this jump. As she
approached the jump, she concentrated on what she was doing.
Hiibschman states that she snowplowed all the way to keep her
speed as low as possible and that she was going slower than the
skiers on the other side of the hill. As she approached the
jump, she leaned forward. She also straightened out her skis so
they would not cross when she hit the jump.3 However, Hiibschman
stated, the jump
threw me way high, higher than I thought
it would, and threw me back. And I was --
still upside down in the air, and I was
struggling to get forward, lean forward as
hard as I could and I just didn't have enough
time. My butt and the backs of my skis hit
the ground at about the same time and then I
rolled down the hill -- slid actually.
Others confirmed that the jump "lofted you straight up into the
air. . . ." Hiibschman testified that when she landed, her skis
"were almost perpendicular to the ground." She fell and landed
on her tail bone, resulting in permanent paralysis from the waist
down.
At the time Hiibschman jumped, a big pit existed at the
base of the jump, where people had been landing. The ski lift
operator explained, "[A]t the end of the day you have this pit
right here, this is an average distance where everybody's going
to land, and they always fall and hit their butts on the snow and
it just keeps digging it out and digging it out." Hiibschman
never observed the landing area nor did anyone mention to her
anything about it. The lift operator further explained, "as you
landed it was kind of a flat surface, not too much incline so you
had. . . a hard landing . . . because if you have an incline it
tends to be more soft because you glide off it, but instead you
kind of landed hard, boom, you know." Another lift attendant
also said the jump was dangerous because the landing was too flat
and a skier would get too much air time for the jump. About half
the people taking the jump fell, some of whom were beginners.4
Some skiers who fell also landed on their rear or back.
During testimony, when asked whether he thought the
jump was dangerous, the ski lift operator answered, "Yes." He
admitted that "I should have told them not to take the jump until
they had learned how to ski better, because they kept getting
behind on their skis. . . ."5 However, while the ski patrol
would destroy jumps it considered unsafe or mark them as out of
bounds, this jump was not so destroyed or marked. An expert in
ski area design and planning thought it was inappropriate to have
this jump, or any jump, on a beginner's hill unless the jump were
marked as appropriate only for more advanced skiers.
One other key fact exists regarding the accident.
Before skiing, Hiibschman and her friends stopped at the Valdez
Bottle Stop Liquor Store. Hiibschman estimated that she had
consumed between one and one-half and three beers before the
accident. She believed that she was in control at all times
while skiing and that the beers made no difference to her skiing
performance. Hiibschman asserted that she had taken four runs
between her last drink of beer and the time of the accident and
she did not fall on any of those runs. She said she was clear
headed as she started her descent towards the jump. An emergency
medical technician who subsequently attended Hiibschman stated,
"I could smell alcohol on her breath, but she was not obviously
intoxicated."
On the day of Hiibschman's accident, there were at
least five inherent risk of skiing signs posted at Salmonberry
Ridge: one on the outside of the lift shack, one by the door to
the warming hut, one inside the warming hut, and one on the
inside of each bathroom door.6 These signs were posted in places
the Parks & Recreation Service thought were "the most prominent
places on the ski hill."
Based on the Ski Act, the City moved for summary
judgment, which the superior court granted in part and denied in
part. The court held that Hiibschman's injuries resulted from
"an inherent risk of skiing" which specifically included
"variations or steepness in terrain,""surface . . . conditions,"
and/or "a skier's failure to ski within the limits of the skier's
ability." The superior court rejected Hiibschman's contention
that the statute's categories violated equal protection.
However, the superior court found that a genuine issue of
material fact existed regarding whether the signs were posted "at
prominent locations within [the] ski area. . . ."
Hiibschman filed a motion for reconsideration. While
the court concluded that artificial objects can qualify as an
inherent risk of skiing within the statute, the court agreed with
Hiibschman that negligent or defectively made or designed
artificial conditions would not constitute an "inherent risk of
skiing" and could be actionable in tort. However, the superior
court stated that no competent evidence was presented to raise a
genuine issue of material fact that the jump was negligently or
defectively made or designed. The court also found it
unnecessary to consider whether the slope was negligently
maintained, instead treating the claim as one of negligent
design.
Hiibschman then filed a second motion for
reconsideration which the superior court granted in part, and
denied in part. The court considered an expert affidavit stating
that allowing a jump on a beginner hill was negligent and found
that it raised a genuine issue of material fact as to whether the
jump constituted an inherent risk of skiing. However, the court
reaffirmed its prior conclusion that Hiibschman's attempt to ski
over the jump was, as a matter of law, "a skier's failure to ski
within the limits of the skier's ability." Thereafter the court
submitted the issue of adequate signing to a jury. The jury
returned a verdict in favor of the City on this issue.
Hiibschman now appeals and the City cross-appeals.
I. DID THE JUMP CONSTITUTE AN INHERENT RISK OF SKIING OR A
NEGLIGENTLY CREATED ARTIFICIAL CONDITION?
The superior court found that a genuine issue of
material fact existed as to whether the jump constituted an
inherent risk of skiing, i.e. whether the jump was a non-
negligently created or maintained variation in terrain. The
City, in its cross-appeal, is asking the court to hold, as a
matter of law, that the jump constituted an inherent risk of
skiing.7 The City contends that the jump was a "variation[] or
steepness in terrain"or a "surface condition[]." The City also
asserts that the jump was open and obvious and knowingly
encountered, and argues that Hiibschman's alcohol consumption
magnified any risk inherent in the jump. It claims the greater
weight of authority would deem the jump an inherent risk of
skiing.
Hiibschman maintains that the jump was an artificial
condition created by a neglected stack of brush cut and stacked
by the City. Alternatively, she submits that it may have been
built by children with shovels borrowed from the City employees,
and intentionally groomed by the employees. Her theory of
negligence is that this jump was inappropriate for a beginners'
hill, particularly as no warning of its danger was given.
We affirm the superior court's determination that a
genuine issue of material fact existed as to whether the jump
constituted an inherent risk of skiing.
A. Evidence of Negligence
First, we note that the statute does not eliminate a
ski area operator's liability for negligence. The legislative
history of the statute makes this clear. Industry proponents of
the bill stated repeatedly that they did not wish to avoid any
responsibilities that were rightfully theirs, but they wanted to
reduce nuisance claims. The statute was intended to bar recovery
for those actions which only the skier could control and that
were beyond the ski area operator's control. That the
legislature intended to "clarify"the law and not change it, and
that it sought to limit recovery for "inherent risks,"reinforces
our conclusion that industry liability for negligence was
maintained.8
Therefore, the Ski Act preserved the common law duties
of ski area operators at the time of the act's passage. In Webb
v. City and Borough of Sitka, we said,
The rule that we adopt is this: A
landowner . . . must act as a reasonable
person in maintaining his property in a
reasonably safe condition in view of all the
circumstances, including the likelihood of
injury to others, the seriousness of the
injury, and the burden on the respective
parties of avoiding the risk.9
561 P.2d 731, 733 (Alaska 1977).
Further, at the relevant time the law on assumption of
risk had been clarified, restricting it as an affirmative
defense, but leaving intact the concept in its "no duty" form.
We explained,
The concept of assumption of risk was
developed from the common law action of a
servant against his master. The master was
held to be not negligent if he provided a
reasonably safe place to work, and the
servant was said to have assumed the inherent
risks that remained. In this sense
assumption of risk was not an affirmative
defense, but rather was another way of saying
the master was not negligent; for the servant
had the burden of proving that his injury
resulted from a risk other than one inherent
in a place that was a reasonably safe place
to work.
Leavitt v. Gillaspie, 443 P.2d 61, 67-8 (Alaska 1968). We
continued,
But where assumption of risk was a
defense, the question was whether plaintiff
had voluntarily entered into a situation
involving obvious danger, with knowledge of
the danger, and without regard to whether he
had acted in such a situation as a reasonably
prudent man would have acted. . . .
As a matter of policy we disapprove of a
concept which could result in a situation
where an accident victim, even though not
contributorily at fault, could be barred from
recovery because he knew or should have known
of a negligently created risk. The just
concept should be whether a reasonably
prudent man in the exercise of due care would
have incurred the risk despite that
knowledge, and if so, whether he would have
conducted himself in the manner in which the
plaintiff acted in the light of all the
circumstances, including the appreciated
risk.
Id. Consequently, only the person who voluntarily and
unreasonably assumed a negligently created risk was
contributorily negligent and barred from recovery. Hale v.
O'Neill, 492 P.2d 101, 103 (Alaska 1971); Young v. State, 491
P.2d 122, 125 (Alaska 1971); Bachner v. Pearson, 479 P.2d 319,
328-330 (Alaska 1970).10
While we believe the statute codified this case law in
the ski context, it also aids trial courts by listing those risks
which are considered inherent in the sport: those risks which
are
obvious11 and necessary12 to it. Evidence of negligence on the
part of the ski area operators, however, takes the case out of
the inherent risk of skiing context.
In the case at bar, it is not clear that the condition
was an inherent risk of skiing, given that a jump is not
specifically listed in the statute and its risk is not
necessarily obvious or necessary.13 Hiibschman stated she didn't
think the jump was hazardous in the way it was designed or
constructed before she went off of it. She said, "I didn't think
it would be there if it was." She knew that the ski hill staff
allowed the children to take the jump and therefore assumed it
was safe for beginners.
Our review of the record persuades us that evidence of
negligence also exists in the case at bar. For example, one
witness stated that the jump should be torn down because "it
wasn't fit, suitable . . . because it was built to where you got
too much air, and it was a flat landing." Hiibschman's expert
witness stated that there should not have been any jumps at all
on a beginner's slope and that if the ski area were intended for
more than beginner skiers, the jumps should have been clearly
marked as being suitable only for expert skiers. Others also
testified that the jump was not safe for beginner skiers. In
fact, the ski area had rules prohibiting artificial jumps, unless
authorized by ski area management. With all inferences drawn in
Hiibschman's favor, we conclude that genuine issues of material
fact exist as to whether the jump was an inherent risk of skiing.
B) Artificial versus Natural Conditions
Hiibschman makes much of this distinction in her brief;
the City, however, contends it is irrelevant to the legal
question of whether the jump was a "variation[] or steepness in
terrain," or a "surface . . . condition[]." The City maintains
the origin of the jump is irrelevant, as it is an inherent risk
of skiing even if it was an artificial condition.
An artificial item can produce an inherent risk of
skiing. The statute covers, for example, collisions with lift
towers. AS 09.65.135(c)(1)(E). Other artificial items may also
produce inherent risks assuming they are not negligently designed
or maintained or assuming the risk is obvious and necessary (e.g.
moguls on an expert trail).14 See Rowett v. Kelly Canyon Ski
Hill, Inc., 639 P.2d 6, 7 (Idaho 1981) (no negligence by ski area
operator when night skier injured by skiing into traffic control
device which was adequately illuminated and discernible at a
distance); see also Smith v. Seven Springs Farm, Inc., 716 F.2d
1002, 1009 (3rd Cir. 1983) (advanced intermediate skier
voluntarily assumed the risk when he skied down a trail marked
most difficult, aware of an icy headwall lined by an unprotected
telephone-like pole).
Therefore, we hold that the duty owed to a skier for a
natural or an artificial condition is governed by Webb, 561 P.2d
731 (faulty sidewalk) and Moloso v. State, 644 P.2d 205 (Alaska
1982) (rock slide during state highway project). Primarily, the
origin of the danger figures into the Webb calculus, as it
affects the burden on the respective parties of avoiding the
risk. It is also relevant to the issue of the ski resort's
knowledge of the danger.
We also hold, however, that an artificially created
jump can not be, as matter of law, "variations or steepness in
terrain"or "surface . . . conditions." AS 09.65.135(a)(1)(B) or
(D). While the statute does not differentiate explicitly between
a ski operator's responsibility for artificial versus natural
conditions, the items it lists, as well as the intent to retain
liability for negligence, indicate that ski area operator
protection from liability for artificial conditions should be
construed narrowly. The legislative history explained, "The
intent of this legislation is to clarify the law concerning the
natural, inescapable risks that are a part of the sport of skiing
and to specify that a ski area operator is not liable for
injuries resulting from these inherent risks." (Emphasis added).
We find particularly compelling the testimony provided
by the National Ski Patrol System, Inc. during the bill's
consideration:
We agree with the concept of S.B. No.
470 which addresses the risks inherent in the
sport of skiing. Ski area operators in the
state definitely need protection from
unjustified liability insurance claims
associated with the natural risks of the
sport. At the same time, we are concerned
that skiers must also be adequately protected
against any form of negligence caused by ski
area operators. We believe with a few
modifications, the proposed statute can
achieve equitable protection for both ski
area operators and the using public.
Suggested revisions to sec. 09.10.320
definitions are:
. . . .
2. (D). Eliminate the word "stumps".
These are probably man induced obstacles that
should be either eliminated, reduced, or
marked as hazards by the ski area operator.
(Emphasis added). The recommendation to eliminate the word
"stumps"was adopted, indicating that altering natural conditions
(e.g. cutting a tree) removes them from the category of inherent
risks which are explicitly listed by the statute. Our conclusion
is reinforced by the presence of the word "stumps"in the Utah
ski statute, upon which the Alaska statute is modeled. UCA 78-
27-52(1). Similarly, the National Ski Patrol System, Inc.
recommended the following, which was not adopted:
1. (C) Expand on snow or ice conditions
to clarify that variations may occur because
of weather factors and/or hill grooming.
For instance, standard grooming
practices could cause variable snow surface
conditions which skiers should accept as
normal inherent risks on a managed ski run.
Negligent grooming practices could cause
unsafe condi-tions, such as leaving dangerous
berms or cutbanks on groomed runs. Ski area
operators should not be absolved from such
negligence.
That the statute did not include snow variations from hill
grooming as an inherent risk also reinforces the importance of
this dichotomy.
Case law from other jurisdictions also emphasizes the
importance of "natural conditions."
What the challenged statute does is to
recognize that there are certain risks
inherent in the sport of skiing that neither
the skier nor the ski area operator can
reasonably control. Indeed, the risk and
often-rugged natural setting provides both
the greatest attractions of skiing as well as
the greatest elements of danger. Natural
condi-tions, such as vegetation, snow cover
and weather conditions, make trail conditions
highly variable and difficult to manage.
Kelleher v. Big Sky of Montana, 642 F.Supp. 1128, 1130 (D. Mont.
1986) (emphasis added). Other cases identifying the "inherent
risks of skiing"often speak generally of items such as "grade,
boundary, mid-trail obstructions, corners and varied conditions
of the snow." Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp.
786, 790 (D. Vt. 1951). This includes things such as roots,
rocks, brush, ruts, and worn spots. Id. In Leopold v. Okemo
Mountain Inc., the court spoke of the "apparent and necessary
danger" inhering in "trees, rocks and adverse terrain which
border every trail." 420 F. Supp. 781, 787 n.2 (D. Vt. 1976).
Here, conflicting evidence exists as to whether this
jump was artificially made or naturally part of the terrain.
This presents a factual question for jury resolution. The ski
lift operator believed the jump was artificial because after it
was removed, no dirt, alders or rocks were left. He saw just
leveled snow, "nice clean snow." Nor was there newly moved brush
around to indicate that it was formed by brush. Also, he had
observed the hill prior to the snowfall and others had told him
that the jump was an artificial structure. Some operators called
the jump "Chet's jump,"allegedly after the individual who built
it. One witness testified that he saw Chet and another person
build these jumps. Supposedly, each day, the employees would
throw more snow on the jump to keep it built up, and would groom
it or pack snow on it to change its characteristics. Testimony
was presented that children made and groomed the jumps with the
shovels given to them by employees at the hill. Yet, there was
also evidence that it was not a jump, but rather a bump that was
used as a jump. The person who removed the jump said it was
created by alder.
It remains for the jury to determine whether the jump
is a natural variation in terrain or surface condition. Thus, we
conclude that the superior court's denial of summary judgment in
this respect was correct.
II. WAS HIIBSCHMAN'S INJURY A RESULT OF A FAILURE TO SKI WITHIN
HER ABILITY WITHIN THE MEANING OF AS 09.65.135(c)(1)(G)?
The superior court concluded as a matter of law that at
the time of the accident Hiibschman was skiing beyond her
ability, within the meaning of AS 09.65.135(c)(1)(G). Hiibschman
argues that the trial court's reasoning produces absurd results,
assumes the legislature intended to change tort liability, and is
contrary to public policy. The City emphasizes that Hiibschman
knew from personal observation what the jump entailed and
knowingly assumed the risk. It argues that Hiibschman's alcohol
consumption magnified any risk inherent in the jump.
The ski area operator is not liable for injuries
resulting from inherent risks listed by the statute, including
skiing beyond one's ability. A trial court should grant summary
judgment only if no genuine issue of material fact exists. Sea
Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d at 116
(Alaska 1990). Here, a disputed issue of fact exists as to
whether Hiibschman was skiing beyond her ability. We hold that
the trial court erred in not submitting this issue to the jury.
For "skiing beyond one's ability"to bar an action, the
skier must subjectively know he or she is skiing beyond his or
her ability, as an inherent risk of skiing must be necessary and
subjectively obvious. On knowledge of risk, Prosser states,
[H]e must not only know of the facts
which create the danger, but he must
comprehend and appreciate the nature of the
danger itself. . . . The standard to be
applied is, in theory at least, a subjective
one, geared to the particular plaintiff and
his situation, rather than that of the
reasonable man of ordinary prudence who
appears in contributory negligence. If
because of age or lack of information or
experience, he does not comprehend the risk
involved in a known situation, he will not be
taken to consent to assume it. His failure
to exercise ordinary care to discover the
danger is not properly a matter of assumption
of risk but of the defense of contributory
negligence.
At the same time . . . the plaintiff
will not be heard to say that he did not
comprehend a risk which must have been quite
clear and obvious to him.
Keeton, supra, at 487-88 (footnotes omitted and emphasis added);
see also Rutter v. Northeastern Beaver County School Dist., 437
A.2d 1198, 1204 (Pa. 1981).
Viewing the evidence most favorably to Hiibschman, we
find that skiing this jump was within her ability level. The
jump was located on a beginners' slope. The ski lift operator
described Salmonberry Ridge as "very beginner, very slow. There
is no difficulty to the run." Hiibschman had taken some down-
hill ski lessons before, and had evaluated how to take this jump.
Hiibschman watched beginners taking the jump, some mastering it.
Others who mastered it, like Aaron Kelly, had fallen the first
three times he jumped it. She did not notice anything dangerous
about the way the jump was designed or constructed. Although
Hiibschman was drinking, she said it did not affect her that day.
Moreover, evidence was presented that teenagers and beginner
skiers are not as able to accurately assess a degree of risk
presented by a dangerous condition. Because contrary evidence
was presented,15 a contested issue of material fact exists. The
question of whether Hiibschman was skiing beyond her ability
should have gone to the jury.
III. IS A CLAIM BARRED IF THE INJURY WAS CAUSED BOTH BY AN
INHERENT RISK AND THE SKI AREA OPERATOR'S NEGLIGENCE?
As the statute does not insulate a ski area operator
from liability for negligence, once evidence of negligence
exists, the case must go to the jury. However, the ski area
operator is free to argue that the skier voluntarily and
unreasonably assumed a negligently created risk.16 The skier's
negligence would then reduce recovery under the doctrine of
comparative negligence. In 1986, six years after
the most recent inherent risk of skiing statute was passed (Ch.
80, SLA 1980), our legislature enacted a comparative negligence
statute.17 While we generally give preference to a specific
statute over a more general one, City of Cordova v. Medicaid Rate
Comm'n., 789 P.2d 346, 352 (Alaska 1990), we must harmonize the
two statutes if possible. State, Dept. of Highways v. Green, 586
P.2d 595, 602 (Alaska 1978).
Ordinarily, an unambiguous statute is
enforced as written without judicial
construction or modification; however, this
rule is not controlling when a seemingly
unambiguous statute must be considered in
conjunction with another act. Hafling v.
Inlandboatmen's Union, 585 P.2d 870, 872
(Alaska 1978). In that case, we will examine
the legislative history and adopt a
reasonable construction which realizes
legislative intent, avoids conflict or
inconsistency, and gives effect to every
provision of both acts. Id. at 873, 875,
877.
Lake v. Construction Mach., Inc, 787 P.2d 1027, 1030 (Alaska
1990).
As such, we must interpret the Ski Act so as not to
nullify the comparative negligence statute. The reason for this
was explained in Rini v. Oaklawn Jockey Club, 861 F.2d 502, 508
(8th Cir. 1988):
"[W]here assumption of risk coincides
with contributory negligence, application of
the doctrine operates to frustrate the very
result that the comparative negligence
statute was designed to achieve."Rutter v.
Northeastern Beaver County School District,
437 A.2d at 1210 n. 6 (plurality). Dean
Prosser also noted that the retention of this
form of assumption of risk after legislative
adoption of comparative negligence
[i]n all probability . .
. defeats the basic intention of
the statute, since it continues an
absolute bar in the case of one
important, and very common, type of
negligent conduct on the part of
the plaintiff. It can scarcely be
supposed in reason that the
legislature has intended to allow a
partial recovery to the plaintiff
who has been so negligent as not to
discover his [or her] peril at all,
and deny it to one who has at least
exercised proper care in that
respect, but has made a mistake of
judgment in proceeding to encounter
the danger after it is known.
W. Prosser, Prosser on Torts 68, at 457
(4th ed. 1971) (footnote omitted).
We note that this approach has been adopted by Oregon.
Jessup v. Mt. Bachelor, Inc., 792 P.2d 1232, 1233 (Or. App.),
rev. denied 799 P.2d 646 (Or. 1990). The Oregon Court of Appeals
held that while recovery is barred for an injury caused solely by
an inherent risk of skiing, comparative fault applies when the
injury is caused by a combination of an inherent risk of skiing
and the ski area operator's negligence. Id.
The City disagrees with this approach, placing emphasis
on a Utah statute similar to Alaska's Ski Act. The City cites
From Wright to Sunday and Beyond: Is the Law Keeping Up With the
Skiers? 4 Utah L. Rev. 885, 893-97 (1985):
By extending immunity to ski resorts
when an "inherent risk"causes the injury,
the Utah legislature has pre-empted the
comparative negligence statute for those
risks. Thus, where an injury results from a
hazard categorized as an "inherent risk,"the
skier injured in Utah is contributorily
negligent per se, despite the comparative
negligence statute.
Two critical facts, however, differentiate Utah's statute from
the Alaska Ski Act. First, the Alaska statute omits language
contained in the Utah statute: "[n]otwithstanding anything in
Sections 78-27-37 through 78-27-43 [78-27-38 is the specific
provision adopting comparative negligence] to the contrary, no
skier may make any claim against, or recover from, any ski area
operator for injury resulting from any of the inherent risks of
skiing." Utah Code Ann. 78-27-53 (1953). Second, Alaska's
comparative negligence statute was passed after the Ski Act,
whereas in Utah it was passed before the ski statute. The
statutory enactment of comparative negligence in Alaska after the
inherent risk of skiing statute, without acknowledging the Ski
Act, indicates a legislative intent to allow principles of
comparative negligence into the ski context. Cf. In re Tapp, 16
B.R. 315 (Bankr. Alaska 1981).
Moreover, because Alaska had comparative negligence as
a matter of case law as early as 1975, e.g. Kaatz v. State, 540
P.2d 1037, 1049 (Alaska 1975), the Ski Act's failure to
specifically eliminate comparative negligence in the ski context,
as Utah did, indicates that the legislature did not intend to
exclude comparative negligence analysis. Our conclusion is
reinforced by the statute's legislative history, which indicates
that the statute was not intended to eliminate ski area
operator's liability for negligence.
On remand, questions of whether Hiibschman's actions
were reasonable, including the relevance of her drinking and her
knowledge of the risk of taking the jump, will be relevant to the
issue of comparative negligence.
IV. WERE THE POSTED SIGNS INSUFFICIENT AS A MATTER OF LAW TO
SATISFY AS 09.65.135?
The superior court found that a genuine issue of
material fact existed as to whether the signs were posted at
prominent locations in the ski area. Hiibschman contends that
the posted signs were insufficient as a matter of law, for they
were not "trail signs" nor were they posted at "prominent
locations"as required by statute.
We find Hiibschman's arguments without merit. The
superior court left for the jury the general issue of the
adequacy of notice and signing. The issues of "the size,
content, number, location, and prominence of the signs"were all
tried by the jury, and the evidence in the record supports the
verdict. Steven Weber, who was the Director of the Parks and
Recreation Department in Valdez at the relevant time, explained
that he had posted the signs so that "the average skier -- or the
skier participating in the activity could stop and read the
sign." It was typed in bold letters with some underlining.
While there were no inherent risk of skiing signs on the hill
itself, Weber stated:
[W]e felt . . . the best place to do
that was at the bottom of the hill where most
of the activity took place, where . . . the
skiers had to initially go by to get to the
ski lift. Posting signs throughout the hill
. . . didn't really meet that requirement in
my eyes. I felt that the intent or the
spirit of this statute here was to inform the
skiers, and I felt the best way to inform
them was prior to skiing and not after
skiing. And, skiers would traditionally
normally use the restroom prior to skiing,
use the warm-up hut prior to skiing to put
their boots on and then . . . by the nature
of the way they travelled to the ski lift
. . . we had a couple of signs posted there
they would have to go by in order to get to
the ski lift and actually load on the lift.
Although no "trail"signs were posted, Salmonberry
Ridge is just one small open hill; there are no real, designated
trails as such. After skiers get off of the lift, they have the
option of going to the right or going to the left, skiing each
respective side of the hill. While others, including Hiibschman,
said that they saw no signs, the jury found that such signs were
posted. John Wiland, the mountain manager when Salmonberry Ridge
opened, testified that signs were posted in each of the
outhouses, going into the warming hut, on the lift shack, and at
the top of the lift shack. Theresa Day was skiing on the day of
Hiibschman's injury and recalls seeing signs posted in the
outhouse and in the ski tow area. Aaron Kelly, who also was
skiing with Hiibschman, saw the signs posted on the inside of the
outhouse and on the front of the warming hut. Therefore, we
affirm the superior court's ruling that genuine issues of
material fact existed as to whether requisite signs were posted
at prominent locations in the ski area.18
V. DID THE SUPERIOR COURT ABUSE ITS DISCRETION IN GRANTING THE
PROTECTIVE ORDER RELATING TO HIIBSCHMAN'S PRIOR DWI
CONVICTION AND/OR PRIOR DRINKING EXPERIENCE?
The superior court prohibited the City from discovering
or using evidence relating to Hiibschman's prior Driving While
Intoxicated (DWI) conviction and prior drinking experience
pursuant to Evidence Rule 40219 and 403.20
We reverse a trial court's decision on the admission of
evidence only for an abuse of discretion. Atkinson v. State, 611
P.2d 528, 532 (Alaska), cert. denied 449 U.S. 876 (1980). The
City believes that such an abuse occurred; it argues that the
probative value of the evidence far exceeds its prejudicial
effect. The City intends to use the evidence to establish that
Hiibschman and her mother knew of the adverse effects the alcohol
had on Hiibschman's functioning. The City claims the evidence
shows Hiibschman's lack of judgment on the day of the accident,
as well as her mother's own negligence in permitting Hiibschman
to drink alcohol. It also shows Hiibschman's tolerance level for
alcohol.21
We hold that the superior court did not abuse its
discretion in issuing the protective order. While the City
argues that the court's citation to Rules 402 and 403 indicates
that the court found "the evidence relevant under 402, but
nonetheless excluded it under Rule 403. . . .", the sparse
reference by the superior court does not conclusively support the
City's interpretation. The court also may have found the
evidence irrelevant under Evidence Rule 402.
We conclude that the evidence does have marginal
relevance. Hiibschman admits knowledge about the effects of
alcohol. She has taken Freshman Health in school where she
learned about the amount of alcohol that impairs one's judgment.
While Hiibschman claims she did not drink enough to impair her
judgment, the excluded evidence is only slightly relevant to this
point. In Dyer v. State, the court of appeals said that evidence
used to impeach a witness by showing that he was an alcoholic at
the time of the incident about which he was testifying "was only
tangentially probative of how much alcohol he actually drank that
particular night." 666 P.2d 438, 451 (Alaska App. 1983).
Moreover, other evidence exists which suggests Hiibschman's
consumption and impairment. The availability of alternative
evidence goes to the probativeness of the evidence in dispute.
Finally, this information is not relevant to the comparative
negligence of Hiibschman's mother, for she did not give
Hiibschman alcohol on the day in question.
The cases cited by the City are unhelpful. This type
of relevance question, requiring the balancing of prejudice and
probativeness, is a fact specific inquiry. The potential
prejudice, that the jury would punish Hiibschman for her prior
conduct, may outweigh the evidence's marginal relevance. The
superior court did not abuse its discretion.22
CONCLUSION
We AFFIRM in part, and REVERSE in part, and REMAND the
case for a new trial.
_______________________________
1. Limitations on claims arising from skiing.
(a) A skier may not recover from a ski
area operator for injury resulting from an
inherent risk of skiing unless the injury
occurred when the ski area operator was not
providing the information required by (b) of
this section.
(b) A ski area operator shall post trail
signs at prominent locations within a ski
area which shall include a list of the
inherent risks of skiing and the limitation
on liability of the ski area operator
provided by this section.
(c) In this section
(1) "inherent risks of skiing"means the
dangers or conditions which are an integral
part of the sport of skiing, including, but
not limited to,
(A) changing weather conditions;
(B) variations or steepness in terrain;
(C) snow or ice conditions;
(D) surface or subsurface conditions
such as bare spots, forest growth, and rocks;
(E) collisions with lift towers, other
structures, and their components unless the
skier is on the lift;
(F) collisions with other skiers; and
(G) a skier's failure to ski within the
limits of the skier's ability;
(2) "injury"means a personal injury or
property damage or loss;
(3) "skier"means a person in a ski area
engaged in the sport of skiing, sliding
downhill on snow or ice on skis, a toboggan,
a sled, a tube, a ski-bob, or other device
for recreation in snow;
(4) "ski area"means all ski slopes,
trails and other places under the control of
a ski area operator and administered as a
single enterprise in the state;
(5) "ski area operator" means the
operator of a ski area.
2. While the City contends that this was more of a "bump"
than a "jump," the term "jump"will be used. We draw the
inferences in Hiibschman's favor, as she was the party opposing
summary judgment. Wilson v. Pollet, 416 P.2d 381, 383-84 (Alaska
1966).
3. Others dispute Hiibschman's account. Some say that
she was traveling quickly, approaching the jump at "full speed,"
becoming rigid as she neared the jump, and leaning too far back
which caused her ski tips to go straight up. Again, we construe
the facts in Hiibschman's favor at this stage.
4. The testimony varied widely on the success rate for
navigating the jump. Some testimony indicated that hardly any of
the skiers navigated it successfully and even intermediate skiers
would fall. Yet, others said most skiers navigated this jump
successfully.
5. The head of the ski patrol at the time of the accident
stated, however, that to his knowledge, no other skier had ever
been injured on that jump. The ski lift operator concurred.
6. The signs read as follows:
INHERENT RISKS OF
SKIING
AS REQUIRED BY ALASKA STATE STATU[T]E
SEC. 09.65.135, THIS NOTICE IS TO INFORM YOU
OF THE INHERENT RISKS OF SKIING. INHERENT
RISKS OF SKIING MEANS DANGEROUS CONDITIONS
WHICH ARE AN INTEGRAL PART OF THE SPORT OF
SKIING. THESE RISKS INCLUDE BUT ARE NOT
LIMITED TO:
A. CHANGING WEATHER
CONDITIONS;
B. VARIATIONS OR
STEEPNESS IN TERRAIN;
C. SNOW OR ICE
CONDITIONS;
D. SURFACE OR
SUBSURFACE CONDITIONS SUCH AS BARE
SPOTS, FOREST GROWTH, AND ROCKS;
E. COLLISIONS WITH LIFT
TOWERS, OTHER STRUCTURES, AND THEIR
COMPON[]ENTS UNLESS THE SKIER IS ON
THE LIFT;
F. COLLISIONS WITH
OTHER SKIERS;
G. A SKIER'S FAILURE TO
SKI WITHIN THE LIMITS OF THE SKIERS
ABILITY.
LIMITATION ON CLAIMS ARISING FROM SKIING
A SKIER MAY NOT RECOVER FROM A SKI AREA
OPERATOR FOR INJURY RESULTING FROM AN
INHERENT RISK OF SKIING.
PLEASE BE SAFETY CONSCIOUS AND HAVE A
GOOD TIME.
7. The superior court's grant of summary judgment is
reviewed as to whether a genuine issue of material fact exists
and whether the moving party is entitled to judgment on the law
applicable to the established facts. Sea Lion Corp. v. Air
Logistics of Alaska Inc., 787 P.2d 109, 116 (Alaska 1990). All
legal questions are afforded de novo review. See Walsh v.
Emerick, 611 P.2d 28, 30 (Alaska 1980).
8. The statement of legislative intent reads as follows:
The legislature finds that the sport of
skiing is practiced by a large number of
residents of the state and attracts a large
number of nonresidents, significantly
contributing to the economy of the state. It
further finds that insurance carriers are
increasingly reluctant to provide liability
insurance protection to ski area operators
and that the premiums charged by insurance
carriers have risen sharply in recent years
due to confusion as to whether a skier
assumes the risks inherent in the sport of
skiing when he participates actively in the
sport. It is the intent of the legislature
in enacting this Act to clarify the law in
relation to skiing injuries and the risks
inherent in that sport and to provide that,
as a matter of public policy, a person
engaged in that sport may not recover from a
ski area operator for injuries resulting from
those inherent risks.
9. When AS 09.65.135 was passed in 1980, ski area
operators were also under a statutory duty to avoid liability for
negligence. Former AS 05.20.012, enacted in 1967, read:
Liability For Accidents In Skiing Areas.
No owner or operator of ski equipment may be
held liable for the negligence of persons
other than employees who use designated
skiing areas owned or controlled by him,
unless the owner or operator has negligently
maintained the designated skiing areas or has
furnished or supplied defective equipment,
the use of which is the proximate cause of
any injury sustained by a person while
engaged in skiing activities within the
designated skiing areas. [ 2 Ch. 25 SLA
1967] (Emphasis added).
10. Given the law of assumption of risk codified by the
statute, we reject the City's argument that assumption of risk
bars Hiibschman's claim on the basis that the jump was open and
obvious and knowingly encountered. Similarly, the City cites
cases indicating that the assumption of risk doctrine codified by
statute "renders the reasonableness of the skier's . . . behavior
irrelevant." E.g., Schmitz v. Cannonsburg Skiing Corp., 428
N.W.2d 742, 744 (Mich. App. 1988). We reject this
interpretation.
11. The frequent notice provided by trail signs makes the
risk obvious.
12. A risk must be "necessary"to be an inherent risk of the
sport.
The question of whether a risk is
necessary relates to the issue of the
operator's duty; . . . . If a given danger
could be eliminated or mitigated through the
exercise of reasonable care, it is not a
necessary danger. Necessary dangers,
therefore, must be those which cannot
reasonably be eliminated by the area
operator.
Assumption of Risk After Sunday v. Stratton Corp.: The Vermont
Sports Injury Liability Statute and Injured Skiers, 3 Vermont L.
Rev. 129, 141-2 (1978) (emphasis in original).
13. A risk not listed in the statute may still be an
inherent risk of the sport if necessary and obvious. The risk
must be subjectively obvious to the skier. The plaintiff must
know of the risk's presence, understand its nature, and freely
and voluntarily choose to encounter it. W. Keeton, Prosser &
Keeton on Torts, 68, at 486-87 (5th ed. 1984).
14. If, as the City contends, moguls originate from
"terrain variations, skier patterns, and snow and ice
conditions," then they are not artificial conditions
intentionally put on the run comparable to the jump.
15. For example, Hiibschman's mother told Chet Simmons that
the accident was Hiibschman's own fault, that she was intoxicated
and skiing out of control. As to this statement, Hiibschman's
mother later submitted an affidavit denying she had said it.
16. Skiing beyond one's ability, AS 09.65.135(c)(1)(G),
would constitute an unreasonable assumption of a negligently
created risk.
17. Alaska Statute 09.17.060 reads as follows:
Effect of contributory fault. In an
action based on fault seeking to recover
damages for injury or death to a person or
harm to property, contributory fault
chargeable to the claimant diminishes
proportionately the amount awarded as
compensatory damages for the injury
attributable to the claimant's contributory
fault, but does not bar recovery.
18. Our resolution of the merits of this issue makes it
unnecessary to discuss the City's argument that the issue is
improperly before the court.
19. Evidence rule 402 states,
All relevant evidence is admissible,
except as otherwise provided by the
Constitution of the United States or of this
state, by enactments of the Alaska
Legislature, by these rules, or by other
rules adopted by the Alaska Supreme Court.
Evidence which is not relevant is not
admissible.
20. Evidence Rule 403 states,
Although relevant, evidence may be
excluded if its probative value is outweighed
by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
21. Hiibschman was arrested in December 1985 for DWI. She
entered a plea of no contest, receiving a sentence of a $250
fine, 72 hours in jail, and alcohol screening. She claimed that
the experience made her very careful about drinking. The
incident involved drinking some of her grandfather's beer and
putting her mother's truck into a ditch. She alleges the truck
ended up in the ditch not because of her alcohol consumption, but
because the street had about four inches of glare ice on it.
When she touched the brakes to stop at the stop sign, the truck
slid into the ditch. She recognizes that her judgment was
impaired.
22. As to the other issues on appeal, we need not address
them. The City concedes that expert testimony is not essential
if the matter is remanded. As to Hiibschman's argument that AS
09.65.135 violates equal protection under the Alaska
Constitution, our construction of AS 09.65.135 makes resolution
of this issue unnecessary.
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