Kidd v. Taos Ski Valley

PUBLISH

________

UNITED STATES COURT OF APPEALS
Filed 7/5/96
TENTH CIRCUIT

________

BECKY J. KIDD, )
)
Plaintiff-Appellant, )
)
v. ) No. 95-2066
)
TAOS SKI VALLEY, INC., )
)
Defendant-Appellee. )
________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(CIV-93-327-JC)
________

Grant Marylander (Jim Leventhal and Natalie Brown, of Leventhal &
Bogue, Denver, Colorado, and Marion J. Craig, III, Roswell, New
Mexico, with him on the briefs) of Leventhal & Bogue, Denver,
Colorado, for Plaintiff-Appellant.

Joe L. McClaugherty (Jere K. Smith with him on the brief), Santa
Fe, New Mexico, for Defendant-Appellee.
________

Before BRORBY, BARRETT, and LIVELY*, Circuit Judges.
________

BARRETT, Senior Circuit Judge.
________

*The Honorable Pierce Lively, Senior Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
________

Becky J. Kidd (Kidd) appeals from a memorandum opinion and
order granting Taos Ski Valley, Inc. (TSV) summary judgment and

dismissing her complaint with prejudice.

Kidd suffered a broken back, ribs, hip, and pelvis in a skiing

accident at TSV. “Her injuries were possibly received when she

crossed a diversionary rope located on an area permanently marked

as a slow skiing area by a huge orange banner.” (Appellant’s

Appendix, Vol. II, Memorandum Opinion, Undisputed Facts, at 445).

“The black and yellow rope, held up by bamboo poles and marked

with strips of orange fluorescent flagging, was intended to close

off a portion of the mountain to prevent collisions between skiers

returning to the base from different sides of the mountain.” Id.

“Plaintiff, an experienced TSV skier, never saw the rope closure.”

Id. at 445-46.

Kidd filed a complaint in which she alleged, inter alia, that:

TSV, in installing the diversionary rope, had breached its

obligations under New Mexico’s Ski Safety Act, N.M. Stat. Ann. §§

24-15-1, et seq. (the Act), by failing to properly mark, warn

and/or correct a dangerous hazard created by the suspension of the

rope between two poles (Count I); TSV had acted with wanton or

gross negligence in maintaining the unmarked rope and she was,

accordingly, entitled to punitive damages (Count II); TSV breached

it contractual obligations under a special use permit with the

United States under which she was a third party beneficiary (Count

III); and TSV’s installation of the rope created an inherently

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dangerous condition, thereby imposing the duty of highest care on

TSV (Count IV).

TSV moved to dismiss Counts II, III, and IV for failure to

state a claim upon which relief could be granted. The district

court denied TSV’s motion to dismiss Kidd’s Count II punitive

damage claim, concluding that although the Act was silent on the

availability of punitive damages, general New Mexico law principles

allowed for the recovery of punitive damages in limited

circumstances, including conduct committed with a wanton disregard

of a plaintiff’s rights. The district court did, however, grant

TSV’s motion to dismiss Counts III and IV, Kidd’s third party

beneficiary and inherently dangerous condition claims.

In dismissing Count III, the district court concluded that

the “language of the statute indicates that the legislature

intended the Act as the sole remedy for skiers” and that New Mexico

case law “provide[s] persuasive authority indicating that the state

courts would reject Plaintiff’s theory of liability based on a

third party beneficiary cause of action.” (Appellant’s Appendix,

Vol. I at 73-74). In dismissing Count IV, the district court

concluded that the inherently dangerous activity doctrine “is

inconsistent with the Act because it would permit the imposition of

additional duties on ski operators” and that the “Act was intended

to limit the duties which can be imposed upon ski area operators

[and] therefore forecloses the application of the” doctrine. Id.

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at 75-76. Kidd’s subsequent motion for reconsideration of the

dismissal of Count III was denied.

Thereafter, TSV moved for summary judgment on Kidd’s

remaining claims and Kidd moved for partial summary judgment on the

issue of TSV’s negligence. Following briefing, the district court

entered a memorandum opinion and order granting TSV summary

judgment and dismissing Kidd’s complaint with prejudice. In so

doing, the district court found that: although TSV offered

convincing evidence that Kidd breached her duty to ski safely,

Kidd’s testimony that she was not skiing out of control created a

genuine issue of material fact making summary judgment improper,

(Appellant’s Appendix, Vol. II at 447); Kidd failed to produce

competent evidence from which a reasonable juror could conclude

that the rope closure was not in accordance with industry usage and

National Ski Area Association (NSAA) standards, id. at 449; and, no

reasonable juror could conclude that the closure itself created a

hazard under the Act requiring TSV to warn skiers of its presence.

Id. at 451.

On appeal, Kidd contends that the district court erred when it

granted TSV’s motion for summary judgment, barred her from

obtaining critical discovery, and dismissed her third party

beneficiary claim.

I.

Kidd contends that the district court erred when it granted

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summary judgment in favor of TSV. Kidd argues that summary

judgment was erroneous because she presented substantial evidence

that TSV breached its duties under §§ 24-15-7(I) and (C) of the

Act.

We review a district court’s grant or denial of summary

judgment de novo, applying the same legal standard used by the

district court. Lancaster v. Air Line Pilots Ass’n Int’l., 76 F.3d

1509, 1516 (10th Cir. 1996). Summary judgment is appropriate if

there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Hagelin for

President Comm. of Kan. v. Graves, 25 F.3d 956, 959 (10th Cir.

1994), cert. denied, ___ U.S. ___ (1995). When applying this

standard, we examine the factual record and reasonable inferences

therefrom in the light most favorable to the non-moving/opposing

party. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th

Cir. 1995).

a.

Kidd asserts that summary judgment was inappropriate because

there was substantial evidence that TSV breached its duty under §

24-15-7(I) of the Act. This section provides that “[e]very ski

area operator shall have the following duties with respect to the

operation of a skiing area: . . . to warn of or correct particular

hazards or dangers known to the operator where feasible to do so.”

Kidd argues that TSV breached this duty when it installed the

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single strand diversionary rope and blocked off an otherwise

skiable area without giving the skier sufficient warning. The

district court rejected these arguments, concluding that:

The evidence submitted by the parties in this case
demonstrates as a matter of law that the TSV rope
closure, by virtue of its location and purpose, cannot
qualify as a hazard under the Act. The rope is located
in a well-marked slow skiing zone near the base of the
mountain. The closure serves to prevent, not cause,
collisions between skiers returning to the base area.
Moreover, the undisputed evidence shows that the rope has
been in place since 1978, and [over one] million skiers
have managed to ski past it without injury.

(Appellant’s Appendix, Vol. II at 447).

Kidd maintains that this conclusion was erroneous and that

summary judgment improper when, as here: TSV’s expert acknowledged

that a rope between two poles on a ski slope could be a hazard if

a skier did not have time to react to the rope or could not see it.

(Appellant’s Appendix, Vol. II at 333); the evidence was undisputed

that Kidd, an experienced TSV skier did not see the rope, id. at

445-46; Kidd presented the testimony of another skier who stated

that the “rope was not reasonably visible” and that “[i]n skiing

down the slope to Becky J. Kidd I did not see the rope,” id. at

309; and photographs taken immediately after the accident

demonstrated the rope’s lack of visibility against the white

background.

TSV responds that summary judgment was proper based on the

undisputed evidence that the area of Kidd’s accident had been

marked off and closed to skiing for at least twelve years without

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incident and its expert’s testimony that the rope did not create a

hazardous situation and that the rope complied with the Act. TSV

also maintains that a ski area operator’s duty to warn of or

correct particular hazards or dangers under § 24-15-7(I) is limited

to those hazards or dangers which are known to the operator and

that Kidd failed to present any evidence that TSV knew that the

rope closure was a hazard.

Although the determination of “[w]hether a duty [under the

Act] has been breached is a question of fact,” Lopez v. Ski Apache

Resort, 836 P.2d 648, 655 (N.M. Ct. App.), cert. denied, 113 N.M.

815 (1992), the determination of “[w]hether a duty exists is

generally a question of law for the court to determine.” Id. As

a matter of law, the duty imposed on ski area operators by § 24-15-

7(I) “is limited to situations where the particular hazard is both

known to the ski area operator and warning of or correcting the

particular hazard is feasible.” Id. at 656 (emphasis original).

Applying Lopez, we hold that the district court did not err in

granting TSV summary judgment on Kidd’s § 24-15-7(I) claim. Kidd

failed to present any probative evidence that the diversionary rope

in question was a “particular hazard . . . known to” TSV. On the

contrary, the undisputed evidence was that the rope had been in

place since 1978 and over one million skiers had managed to ski

past it without injury. Therefore, TSV was entitled to judgment on

this claim as a matter of law.

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 b.

Kidd reasons that she presented substantial evidence that TSV

breached its duty under § 24-15-7(C) of the act making summary

judgment on this claim improper.

Section 24-15-7(C) provides:

Every ski operator shall have the following duties
with respect to the operation of a skiing area:

* * *

to mark conspicuously the top or entrance to each slope,
trail or area with the appropriate symbol for its
relative degree of difficulty; and those slopes, trails
or areas marked at the top or entrance with the
appropriate symbols as established or approved by the
national ski area association . . . .

(Emphasis added).

Kidd asserts that she presented evidence which created a

triable issue on whether TSV breached its duty under § 24-15-7(C)

to comply with NSAA standards when it installed a single strand

diversionary rope rather than multiple ropes or other barriers.

Kidd argues that the evidence included the fact that although the

NSAA had no written standards for marking closures, industry

practice dictated the proper use of ropes for closures; TSV’s

expert on NSAA standards stated that rope closures should be as

visible as possible, that multiple ropes create a more effective

barrier than single ropes, and that unless there are indications to

the contrary, three rope barriers should be used rather than a

single rope (Appellant’s Appendix, Vol. II at 335, 340 and 343);

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and there was nothing to prevent TSV from using multiple ropes.

Kidd maintains that this evidence created a triable issue on

whether TSV complied with NSAA standards making summary judgment on

this claim improper.

TSV responds that: the only issue is whether the rope closure

at issue complied with NSAA standards; Kidd is attempting to divert

the inquiry away from whether TSV complied with NSAA standards by

focusing on what TSV could have done rather than on what it did;

and its expert testimony established, without exception, that the

rope closure complied with NSAA standards.

We agree with the district court’s findings that Kidd produced

“[o]nly speculation, not expert testimony . . . in attempting to

rebut Defendant’s submitted compliance with the Act” and that “the

record [is] absent of competent evidence that the closure fell

outside industry norms established by NSAA standards.” (Appellant’s

Appendix, Vol. II at 450). Kidd failed to meet her burden as a

nonmoving party of producing specific facts “by any of the kinds of

evidentiary materials listed in Rule 56(c), except the mere

pleadings themselves” to avoid TSV’s properly supported summary

judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986). Her conclusory allegations are not sufficient to defeat

TSV’s motion. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th

Cir. 1995).

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 II.

Kidd contends that the district court erred when it barred her

from obtaining critical discovery relevant to issues raised in the

summary judgment proceedings. Kidd maintains that the district

court abused its discretion when it prevented her from deposing TSV

employees and from designating a visual acuity expert.

a.

Kidd states that the district court abused its discretion when

it prevented her from deposing TSV employees concerning the

hazardous nature of the rope. Under Fed. R.Civ. P. 26(c), the

district court may limit or bar discovery. The decision of a

district court to enter a protective order under Rule 26(c) is

reviewed for an abuse of discretion. Boughton v. Cotter Corp., 65

F.3d 823, 828 (10th Cir. 1995). Under this standard, “we will not

disturb a trial court’s decision absent ‘a definite and firm

conviction that the lower court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.’”

Thomas v. International Business Machs., 48 F.3d 478, 482 (10th

Cir. 1995)(citations omitted).

Senior TSV employees testified that patrol members had been

trained concerning the use of markings and compliance with both TSV

and the Act’s standards. They also testified that patrol members

were instructed to insure that markings were visible. When Kidd

attempted to depose ski patrol members on their training and

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whether the rope in question was appropriately marked, TSV filed a

motion for a protective order.

Following a hearing, the magistrate judge entered a discovery

order granting TSV’s motion “to the extent Defendant seeks to bar

the deposition of the Chief Groomer and the Assistant Head of the

Ski Patrol at this time, based upon the court’s finding that

subordinate employees should not be deposed to the extent the same

information may be obtained from supervisors.” (Appellant’s

Appendix, Vol. I at 109).

Kidd objected to the magistrate’s order. Thereafter, the

district court entered a memorandum opinion overruling Kidd’s

objections, finding, inter alia:

Plaintiff next objects to Magistrate Judge Svet’s
limitation of questioning as to certain non-supervisory
employees. The court has reviewed the deposition
testimony provided by both the Plaintiff and Defendant
and fails to identify the inconsistencies claimed by the
Plaintiff. In fact, Plaintiff’s assertions misstate the
evidence. The clear import of all of the depositions is
that the supervisory [personnel] are ultimately
responsible for the marking of the trails, and that the
non-supervisory patrol members have little if any
discretion in deciding how trails and hazards are to be
marked.

(Appellant’s Appendix at 442B-42C).

We agree. Michael Blake, TSV’s General Manager, testified

that he had the “ultimate responsibility” for properly marking TSV.

(Appellant’s Appendix, Vol. II at 285). Under these circumstances,

we hold that the district court did not abuse its discretion in

overruling Kidd’s objections to the magistrate judge’s order.

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 b.

Kidd declares that the district court abused its discretion

when it prevented her from designating a visual acuity expert. The

decision to allow the testimony of an expert not described or

listed in the pretrial order rests with the sound discretion of the

district court and will not be disturbed absent an abuse of

discretion. F.D.I.C. v. Oldenburg, 34 F.3d 1529, 1556 (10th Cir.

1994).

In the initial pre-trial report, Kidd agreed to identify her

liability expert witnesses by September 15, 1993. Kidd did not

identify any liability expert witnesses by that date. However,

Kidd retained additional counsel on January 15, 1994. On January

21, 1994, Kidd’s additional counsel filed a motion to add Freeman

Hall, a visual acuity specialist and engineer, as an expert

witness. The magistrate judge denied Kidd’s motion.

Following a review of Kidd’s objections to the magistrate

judge’s order, the district court entered a memorandum opinion

overruling Kidd’s objections, stating:

Plaintiff . . . objects to the Magistrate Judge’s
refusal to permit the endorsement of an expert witness .
. . . Plaintiff had sought to add an additional expert
witness over four months after the deadline for
designating experts had passed. Plaintiff has provided
no reason for her delay, and the court can find no reason
other than the recent addition of new counsel for the
Plaintiff. The court therefore finds that Magistrate
Judge Svet’s order denying the addition of the expert .
. . is not clearly erroneous or contrary to law.

(Appellant’s Appendix at 442B).

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 Kidd asserts that the district court abused its discretion

when it prevented her from designating a visual acuity expert who

would have testified that the rope in question was not visible

when, as here: the trial date had not been set; TSV would not have

been prejudiced; she had been diligent, with the exception of

designating the expert, in conducting her discovery; she did not

appreciate the need for a visual acuity expert until she retained

additional counsel; and a visual acuity expert was a critical

expert who would explain to the jury what factors affected the

rope’s visibility and why it could not be seen by skiers.

We hold that the district court did not abuse its discretion

in refusing to allow Kidd to designate a visual acuity expert.

Kidd’s request to designate an expert was made more than four

months after the time period for designating such experts had

lapsed. Moreover, Kidd provided no reason for her delay, save to

allege that she was not aware of the need for such an expert until

after she had retained additional counsel and that the expert would

explain why the rope could not be seen by skiers. Neither of these

assertions are sufficient to support Kidd’s claim that the

district court abused its discretion, particularly in that it was

undisputed that Kidd, “an experienced TSV skier, never saw the

rope closure.” (Appellant’s Appendix, Vol. II, Memorandum Opinion,

Undisputed Facts, at 445).

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 III.

Kidd contends that the district court erred when it dismissed

her third party beneficiary claim. We review de novo the district

court’s dismissal for failure to state a claim. Seymour v.

Thorton, 79 F.3d 980, 984 (10th Cir. 1996).

In Count III, Kidd alleged, inter allia:

Under the terms of the Permit between the United States
and the Defendant, Defendant is to conduct the operations
of the ski area, with full recognition of the need of
public safety,1 and is to regularly inspect the ski area
and correct any hazardous conditions.

The Defendant’s maintaining and permitting the use
of an unmarked Rope in the middle of the ski area
constituted a breach of this lease term.

The United States . . . in granting the Defendant a
right to use [its] property, required that the operation
be conducted with full recognition for the need of public
safety. The people of the United States, including the
Plaintiff, are third-party beneficiaries of the
provisions the Lease Agreement between the United States

1
Section “24. Safety” of the Special Use Permit between
TSV and the Forest Service provided in part:

The permittee [TSV] shall conduct the operations
authorized by this permit with full recognition of the
need for public safety. In furtherance of this
requirement, the permittee shall prepare a safety plan
designed to provide adequate safety to the users of the
permitted area and facilities. The plan shall have
written approval of the Forest Supervisor prior to the
operation of the facilities for public-use purposes.
The plan shall include, but shall not be limited to,
avalanche prevention and control; amount and kind of
rescue equipment; conditioning of trails; and frequency
of permittee inspection of area, equipment, machinery,
and uphill facilities.

(Appellant’s Appendix, Vol. I at 37).

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 and the Defendant. The Defendant’s operation of the ski
area, in violation of the needs for “Public Safety”,
constitute a breach of the Agreement. Plaintiff, was a
third-party beneficiary of this Lease Contract, had the
right to expect the contract to be performed and
therefore should be allowed to recover her damages caused
by Defendant’s breach.

(Appellant’s Appendix at 5). (Emphasis added).

In dismissing Count III, the district court concluded:

The question before the court is whether the Act
provides the exclusive remedy available to the Plaintiff.

* * *

The language of the statute indicates that the
legislature intended the Act as the sole remedy for
skiers. The Act states that ‘[u]nless a ski operator is
in violation of the Ski Safety Act, with respect to the
skiing area . . ., and the violation is a proximate cause
of the injury complained of, no action shall lie against
such ski area, operator by any skier [or his
representative].” . . . Under New Mexico law when the
meaning of a statute is plain, it must be given effect,
and there is no room for construction . . . . Here, the
language of the Act is clear and unambiguous, stating
that no action shall lie against a ski area operator
unless the operator violates the Act and that violation
is the proximate cause of the skier’s injury.

The precise question of whether a ski operator is
liable to a plaintiff as a third party beneficiary has
not been addressed by any appellate court in New Mexico.
In Wood v. Angel Fire Ski Corp., 108 N.M. 453, 355
(Ct.App. 1989), the New Mexico Court of Appeals held that
the Act ‘limited in part the tort liability of ski
operators.’ Later, in Lopez v. Ski Apache Resort, 114
N.M. 202 (Ct.App. 1992), the plaintiff sued for tort
damages resulting from personal injury. Again, the Court
of Appeals held that the ‘provisions of the Act were
intended by the legislature to exclusively control each
of plaintiff’s claims herein.’

From the above cases, it is clear that the Act is
the sole remedy for an action based in tort. In regards
to a contract claim, however, the above cases provide

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 only dicta. Yet, these opinions provide persuasive
authority indicating that the state courts would reject
the Plaintiff’s theory of liability based on a third
party beneficiary cause of action. Since the clear
language of the Act must be given its plain effect, this
Court concludes that a state court hearing this issue
would reject the third party beneficiary theory contained
in Count III.

(Appellant’s Appendix, Vol. I at 73-74).

We agree with the district court that New Mexico case law

provides “persuasive authority indicating that the state courts

would reject Kidd’s theory of liability based on a third party

beneficiary cause of action.”

AFFIRMED.

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