McGuire v. Sunday River

March 1, 1995         [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 94-1978

                       SHARON McGUIRE,

                    Plaintiff, Appellant,

                              v.

               SUNDAY RIVER SKIWAY CORPORATION,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]
                                                               

                                         

                            Before

                    Selya, Cyr and Boudin,

                       Circuit Judges.
                                                 

                                         

John G.  Connor with  whom Law  Office of  John G.  Connor was  on
                                                                      
briefs for appellant.
Evan M. Hansen with whom Elizabeth  J. Wyman and Preti,  Flaherty,
                                                                             
Beliveau & Pachios were on brief for appellee.
                          

                                         

                                         


     Per Curiam.   Appellant Sharon McGuire,  a novice skier,
                           

suffered  a serious knee injury when she fell during a lesson

on a  beginner slope  operated by  the appellee  Sunday River

Skiway  Corporation.   McGuire brought this  diversity action

against Sunday River.   The complaint, as eventually amended,

contained  six  counts  and  several  different  theories  of

wrongdoing.   Ultimately, the district court  granted summary

judgment in favor of Sunday River and dismissed the case.

     The facts  are set forth in the district court's 11-page

opinion, and it is unnecessary to recount them.  Although the

appeal  has  been  effectively  briefed  at  some  length  by

McGuire,  we  think that  the  district  court's decision  is

correct and  that little  would  be gained  by restating  the

district court's reasoning in  somewhat different words.  Two

points,  however, may usefully be added  to what Judge Hornby

has said.

     Much of McGuire's argument on appeal is  directed to the

admitted failure of her instructor or anyone else employed by

Sunday  River to  warn her  that even  a beginner,  skiing in

generally  safe  conditions  under  proper  instruction,  can

suffer a mishap  and a  serious injury.   The district  court

held, as we have ourselves held  in an earlier case, that the

failure  to warn  claims--based  on the  inherent dangers  of

skiing--are severely  limited by Maine's  Skiers' and Tramway

Passengers' Responsibilities Act,  26 M.R.S.A.    488 (1991).

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See generally Finnern v. Sunday River  Skiway Corp., 984 F.2d
                                                               

530, 533 (1st Cir. 1993).

     Section 488 in pertinent  part declares that skiing "may

be  hazardous  to skiers  . .  .  regardless of  all feasible

safety measures" and except as otherwise provided 

     each  skier . . .  shall be deemed  to have assumed
     the risk of  the dangers inherent in the  sport and
     assumed the legal responsibility  for any injury to
     his   person  or   property  arising  out   of  his
     participation in the  sport of  skiing, unless  the
     injury  or  death  was   actually  caused  by   the
     negligent operation or maintenance of the  ski area
     by the ski area operator, its agents or employees.

As we said in Finnern, this provision essentially  means that
                                 

a  ski  area has  no  duty to  warn  a skier  of  the dangers

inherent  in skiing.   984  F.2d at  537.   McGuire's injury,

apparently  resulting from  the failure  of a ski  binding to

release as she fell, is a common danger in skiing.

     McGuire's brief  on appeal  argues inventively that  the

assumption of  the risk  doctrine at  common law  shifted the

risk  of dangers that were apparent to the person who assumed

the risk.  As a  beginner, says McGuire, she was  ignorant of

the  danger and therefore cannot have assumed it.  Indeed, it

is the failure to warn her of such a risk that is at the core

of her negligence  claim.   In reviewing a  grant of  summary

judgment, such  facts may reasonably  be assumed in  favor of

McGuire.

     But whatever  the common-law  tradition may  be, Maine's

statute does not say  that the risks assumed are  those known

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to  the  particular skier.   That  statute declares  that the

sport  is dangerous, and makes  the skier assume  the risk of

the dangers  "inherent in the  sport."  Neither  the language

nor the  context of  this provision suggests  that subjective

knowledge on the part of the  injured skier is required.   An

earlier portion of section 488 makes it crystal clear that it

embraces the least experienced of skiers.

     Although  the statute cuts  off a naked  failure to warn

claim in  the present  case, McGuire  also  alleges that  she

actually inquired about  the risks  of injury  in a  beginner

class  and her ski instructor  replied with a  series of what

the  district  court  called "encouragements"  (e.g.,  we are
                                                                

going  to have a good time, nothing  is going to happen).  On

appeal, McGuire  stresses that the instructor  also said that

no one  had ever been hurt  in her class.   Even if literally

true,  says McGuire's  brief,  this  statement  affirmatively

created  a false  impression since  injuries occur  with some

regularity even in beginner classes.

     The  Maine  statute does  not  purport  to shield  false

statements,  but we think that in this instance there is very

little difference between the supposed false impression and a

simple failure to  warn.   McGuire was a  grown-up with  some

knowledge of  the world; quite  apart from the  ski equipment

rental agreement she had just signed (warning "that  there is

an inherent danger in the use of any ski equipment"), she--or

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at least the hypothetical reasonable person--had to know that

skiing involves some dangers. 

     In all  events, the  instructor never said  that dangers

were entirely absent.  She made soothing sounds and said that

no  injury had  been suffered  by her  students in  the past.

What  was left  out may  have mattered;  perhaps a  vivid and

precise description of the frequency and severity of injuries

among  beginners  would  have  deterred  McGuire.    But  the

omission is  precisely what the Maine statute protects in the

case  of ski resorts.  Doctors may envy the Maine statute but

it is not  unconstitutional for the legislature to  draw such

lines.  See, e.g., Choroszy v. Tso, 647 A.2d 803, 806-07 (Me.
                                              

1994)  (discussing  the  open  courts  and  equal  protection

provisions of the Maine constitution).

     Affirmed.
                         

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