March 1, 1995 [NOT FOR PUBLICATION]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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