PUBLISH
________
UNITED STATES COURT OF APPEALS
Filed 7/5/96
TENTH CIRCUIT
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BECKY J. KIDD, )
)
Plaintiff-Appellant, )
)
v. ) No. 95-2066
)
TAOS SKI VALLEY, INC., )
)
Defendant-Appellee. )
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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.
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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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