Present: All the Justices
LISA S. NELSON
OPINION BY
v. Record No. 020680 JUSTICE LAWRENCE L. KOONTZ, JR.
January 10, 2003
GREAT EASTERN RESORT MANAGEMENT, INC.
T/A MASSANUTTEN SKI LODGE, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
In this appeal, the dispositive issue is whether the trial
court erred in instructing the jury in a personal injury case
that the owner/operator of a recreational facility owed no duty
to protect a voluntary participant against the “inherent risks”
of the recreational activity in which the participant was
injured.
BACKGROUND
The parties do not dispute the relevant facts, which will
be recited here in the light most favorable to the party
prevailing in the trial court. Gardner v. Phipps, 250 Va. 256,
257, 462 S.E.2d 91, 92 (1995). On January 26, 2000, Lisa S.
Nelson was a business invitee of Great Eastern Resort
Management, Inc., which operates in Virginia under the trade
name of Massanutten Ski Lodge (Massanutten). As part of the
winter sports and recreational activities provided at the
resort, Massanutten operates a snow tubing park. Nelson
voluntarily participated in snow tubing on that day.
The slide portion of the snow tubing park consists of nine
inclined prefabricated slide lanes separated by raised dividers.
When the slide is covered with snow, riders in inflated inner
tubes may traverse the slide lanes after reaching the top of the
slide by a tow lift. When riders reach the bottom of the slide,
they are slowed to a stop in a level area called the “run-off.”
The height of the lane dividers increases with the amount of
snow on the slide and berms of snow can form in the run-off
area, thereby extending the lane dividers into that area.
Massanutten employs “loaders,” who assist riders in using
the tow lift, a “starter,” who directs riders to their assigned
lanes and gives them a verbal clearance to begin their ride, and
a “run-off person,” who directs riders to clear the run-off area
when their rides are complete. Because the slide has several
rises and dips, the starter cannot always see the entire run of
the slide or discern whether there are riders still on the slide
or in the run-off area, especially when the snow is deep.
Accordingly, the starter and the run-off person are in contact
by two-way radio, and it is the responsibility of the run-off
person to advise the starter when the slide and run-off area are
clear of riders. Similarly, the starter is to advise the run-
off person if any rider begins his ride early or late.
Massanutten posts warning signs at the entrance to the snow
tubing park advising customers that “tubing is inherently risky
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. . . those risks arise from the following, among others: . . .
collisions with objects, tubes, or people.” The warning signs
also direct riders to “be sure the lane is clear before starting
your descent,” and to “clear the lane as soon as your ride is
complete.” Similar warnings appear on the ticket admitting
customers to the snow tubing park.
After completing a number of snow tubing rides without
incident, Nelson was completing a ride at approximately 12:45
p.m. when another rider emerging from the slide into the run-off
area struck her. Nelson suffered serious injuries requiring
medical and surgical care.
On September 13, 2000, Nelson filed a motion for judgment
against Massanutten seeking $650,000 in compensatory damages. 1
Nelson alleged that her injuries were the result of negligence
on the part of Massanutten and its employees. Although the
motion for judgment alleged numerous acts of negligence, the
thrust of Nelson’s assertions therein was that Massanutten and
its employees negligently permitted another rider to commence
1
Nelson also named Great Eastern Resort Corporation as a
defendant to her suit. At trial, Nelson requested a voluntary
nonsuit as to Great Eastern Resort Corporation, and the parties
agreed that the instructions and verdict form would name only
Massanutten as the defendant. However, the trial court did not
formalize the request for the nonsuit in an order. Accordingly,
Great Eastern Resort Corporation, which Nelson asserts is a co-
owner of the resort, remains a party to the suit and to this
appeal.
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the ride in her lane before she had exited it and negligently
failed to warn her of the impending collision.
In grounds of defense filed October 5, 2000, Massanutten
denied that it had been negligent in the operation of the snow
tubing park, in training its employees, or in failing to provide
the warnings alluded to in Nelson’s motion for judgment.
Massanutten further asserted that Nelson had been contributorily
negligent, that she had “assumed all the risks incident to her
alleged injury,” and that “[t]he risks which [Nelson] alleges
were the cause of her injury were inherent to the sport of snow
tubing.”
At a jury trial held on July 9, 2001, evidence in accord
with the above-recited facts was received along with evidence
relevant to Nelson’s alleged damages. In addition to
instructions relevant to negligence, contributory negligence,
and assumption of risk, the trial court gave the following
instruction proffered by Massanutten:
An operator of a recreational facility has no
duty to protect a voluntary participant in a
recreational activity against risks that are inherent
in the activity itself. Its only duty is to use
ordinary care not to increase the risk beyond what is
inherent in the activity. A participant in such an
activity is deemed to have accepted all risks that
would have been clear and obvious to a reasonably
careful person under the same or similar
circumstances.
4
At the time the instruction was proffered, Nelson objected
that “this is not a statement of Virginia law.” Massanutten,
relying primarily on Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72
(1949), contended that the instruction was consistent with the
doctrine of inherent risks which had been recognized in
Virginia. The trial court noted Nelson’s objection stating, “I
think the evidence can support it and I think it’s good law.”
The jury returned its verdict for Massanutten.
Thereafter, Nelson filed a motion requesting the trial
court to set aside the jury’s verdict and order a new trial.
After hearing oral argument on Nelson’s motion, the trial court
entered an order denying the motion and awarding final judgment
to Massanutten in accord with the jury’s verdict. This appeal
followed.
DISCUSSION
It is axiomatic that participation in certain sports or
recreational activities necessarily involves the exposure of the
participant to the risks of injury inherent in such activities.
Snow skiing and snow tubing are but a few examples of such
activities. Indeed, it can be reasonably asserted from common
experience that the known and accepted inherent risks of a
particular recreational activity provide, in part, the allure
and thrill of participation in the activity. It is in this
context that the duty of care owed by the operator of a
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recreational facility to its invitee and participant in a
particular activity is tempered by the common law principle
volenti non fit injuria – one who consents cannot be injured.
This notion of consent is embodied in the doctrine of
assumption of risk that operates to bar recovery by an injured
party where the nature and extent of the risk were fully
appreciated and the risk was voluntarily incurred by that party.
Landes v. Arehart, 212 Va. 200, 203, 183 S.E.2d 127, 129 (1971).
Assumption of risk is an affirmative defense in Virginia. It
requires the defendant under a primarily subjective test, rather
than the objective reasonable person test applicable to
contributory negligence, to show “what the particular plaintiff
in fact sees, knows, understands and appreciates.” Amusement
Slides Corp. v. Lehmann, 217 Va. 815, 818-19, 232 S.E.2d 803,
805 (1977) (citation omitted). However, while the degree or
scope of the injured participant’s consent is frequently an
issue, the operator of a recreational facility is not an insurer
of the safety of its invitees. Whitfield, 189 Va. at 223, 52
S.E.2d at 73.
Massanutten acknowledges on appeal that the doctrine of
inherent risks, sometimes referred to as “primary” or “implied”
assumption of risk, has not been adopted by this Court as part
of the common law of Virginia. See Hoar v. Great Eastern Resort
Management, 256 Va. 374, 389, 506 S.E.2d 777, 786 (1998).
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Nonetheless, Massanutten contends that this doctrine is in
accord with sound public policy to facilitate free and active
participation in sporting and recreational activities and urges
its adoption by this Court at this time.
For a statement or explanation of the doctrine of inherent
risks, Massanutten cites Turcotte v. Fell, 502 N.E.2d 964 (N.Y.
1986), a case in which a participant in a professional horse
race was injured by the alleged negligence of another
participant and the operator of the racing track. In Turcotte,
after noting that “the analysis of care owed [the] plaintiff in
the professional sporting event . . . by the proprietor of the
facility in which it takes place must be evaluated by
considering the risks plaintiff assumed,” the Court stated that:
The risk assumed . . . means that the plaintiff, in
advance, has given his consent to relieve the defendant of
an obligation of conduct toward him, and to take his
chances of injury from a known risk arising from what the
defendant is to do or leave undone. The situation is then
the same as where the plaintiff consents to the infliction
of what would otherwise be an intentional tort, except that
the consent is to run the risk of unintended injury. The
result is that the defendant is relieved of legal duty to
the plaintiff; and being under no duty, he cannot be
charged with negligence.
Id. at 967-68 (internal quotation marks and ellipses omitted).
The Court of Appeals of New York further explained that in
the context of sporting events the “[d]efendant’s duty . . . is
a duty to exercise care to make the conditions as safe as they
appear to be. If the risks of the activity are fully
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comprehended or perfectly obvious, plaintiff has consented to
them and the defendant has performed its duty.” Id. at 968.
For purposes of our resolution of the present case, we need
not conduct a survey of the law of all our sister states on the
issue presented. We will accept Massanutten’s assertion that
the doctrine of inherent risks, as briefly described above, is
accepted in a number of those states. We note, however, that
unlike the situation in this Commonwealth, the enactment of a
comparative negligence statute in New York has prompted the
courts there to conclude that, while assumption of risk is no
longer an absolute defense, “it still helps and serves to define
the standard of care under which a defendant’s duty is defined
and circumscribed.” Morgan v. State, 685 N.E.2d 202, 208 (N.Y.
1997). Similarly, we need not analyze the instruction at issue
here to determine whether it comports in all respects with an
accurate definition and proper application of the doctrine of
inherent risks. The parties do not raise that issue.
Beyond question, the jury in this case was presented with
evidence sufficient to establish a prima facie case that Nelson
as a business invitee was owed a duty of reasonable care under
the circumstances by Massanutten, that Massanutten negligently
breached that duty by permitting another rider to commence the
ride before she exited it, negligently failed to warn her of the
impending collision, and that her injuries were proximately
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caused by that negligent conduct. See, e.g., Amos v.
NationsBank, N.A., 256 Va. 344, 346, 504 S.E.2d 365, 366 (1998);
Fobbs v. Webb Building Limited Partnership, 232 Va. 227, 229,
349 S.E.2d 355, 357 (1986); Wynne v. Spainhour, 215 Va. 16, 17,
205 S.E.2d 634, 635 (1974). The jury was properly instructed on
the defenses of contributory negligence and assumption of risk,
which were available to and asserted by Massanutten. In short,
the case was not an unusual one and presented jury issues
readily determined under the traditional principles of law that
have long been established in the common law of this
Commonwealth.
The issue of assumption of risk was patent from the factual
circumstances established by the evidence. Clearly, Nelson
“assumed the risk of injury resulting from a ride down a steep
incline.” Amusement Slides, 217 Va. at 819, 232 S.E.2d at 805.
Nelson, however, was not injured as a result of the speed of her
ride; she was injured by a collision with another rider. Thus,
the issue for the jury to determine was whether Nelson
subjectively assumed the risk of injury in that manner.
Massanutten’s instruction, however, permitted the jury to
resolve the issue under directions that Nelson was “deemed to
have accepted all risks that would have been clear and obvious
to a reasonably careful person under the same or similar
circumstances.” This objective standard, apparently applicable
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under the doctrine of inherent risks as adopted in other states,
is inconsistent with the traditional standard applicable in
Virginia where a primarily subjective test is applied to
determine the applicability of the absolute defense of
assumption of risk. See Thurmond v. Prince William Professional
Baseball Club, Inc., 265 Va. ___, ___, ___ S.E.2d ___, ___
(2003) (this day decided) (subjective standard used in
application of the defense of assumption of risk where plaintiff
injured by a batted “foul” ball). We continue to be of opinion
that fairness militates in favor of the traditional standard
because it clearly places the burden of proof upon the party
asserting consent and because of the absolute defense that
consent affords.
In addition, and more importantly, Massanutten’s
instruction told the jury that Massanutten’s only duty of care
with regard to Nelson’s use of the slide was “to use ordinary
care not to increase the risk beyond what [was] inherent in the
activity” without a further instruction of what risks were to be
considered inherent. 2 Thus, the jury could have determined that
it was required to find in favor of Massanutten under this
instruction even though it also found that Massanutten
2
The trial court refused an instruction proffered by Nelson
that would have told the jury that “[i]f a hazard can be
eliminated or mitigated by reasonable care, it is not an
inherent risk of snow tubing.”
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negligently permitted another rider to use Nelson’s lane on the
slide before she exited from it and that Nelson had not assumed
that risk. In this context, Massanutten’s instruction was at
best confusing.
Finally, we are not persuaded that the adoption by this
Court of the doctrine of inherent risks would promote the public
policy of free and active participation in sporting and
recreational activities. Rather, we are of opinion that the
well established common law in this Commonwealth adequately
resolves claims that arise from injuries sustained in these
activities and that our adherence to that law will avoid
unnecessary confusion and is consistent with the public policy
Massanutten favors. Accordingly, we reject Massanutten’s
request that we adopt the doctrine of inherent risks as a part
of the common law of this Commonwealth. 3
We hold that the trial court erred in granting
Massanutten’s instruction on the doctrine of inherent risks.
“If an issue is erroneously submitted to a jury, we presume that
the jury decided the case upon that issue.” Clohessy v. Weiler,
250 Va. 249, 254, 462 S.E.2d 94, 97 (1995). Accordingly, we
3
Our decision not to adopt the doctrine of inherent risk is
in accord with the action of the General Laws Committee of the
House of Delegates, which considered proposed legislation, the
“Skiing Responsibility Act,” that, in part, would have applied
the doctrine of inherent risks to participants in winter skiing.
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cannot say that the trial court’s error in instructing the jury
on the doctrine of inherent risks was harmless, and we will
reverse the judgment in favor of Massanutten. 4
CONCLUSION
For these reasons, the judgment of the trial court will be
reversed and the case remanded for a new trial.
Reversed and remanded.
See House Bill No. 803 (1988)(continued on the docket to 1989
and then stricken in committee).
4
Having concluded that the instruction on the doctrine of
inherent risks was not a correct statement of the law of
Virginia and constituted reversible error, we need not consider
Nelson’s further assignments of error.
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