[Not for Publication]
United States Court of Appeals
For the First Circuit
No. 97-1375
DIANA M. GILBERT,
Plaintiff, Appellant,
v.
SUNDAY RIVER SKIWAY CORP.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Stahl, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Alton C. Stevens with whom Marden, Dubord, Bernier & Stevens was
on brief for appellant.
Evan M. Hansen with whom Elizabeth J. Wyman and Preti, Flaherty,
Beliveau & Pachios were on brief for appellee.
October 22, 1997
Per Curiam. This appeal raises an unusual
Per Curiam.
argument: that the district court's jury instructions,
although correctly summarizing the controlling law,
described a legal issue not generated by the evidence, and
therefore were so likely to have confused the jury that a new
trial is warranted. We reject this argument and affirm.
On March 10, 1994, plaintiff/appellant Diana
Gilbert participated in the Guaranteed Learn to Ski Program
at Sunday River, a ski area owned and operated by
defendant/appellee Sunday River Skiway Corporation. The
instructor assigned to plaintiff's novice class first taught
Gilbert and two others basic skiing techniques, including how
to stop and turn. Because the lift customarily used for
class was not operating, the instructor took the group on a
lift that went higher on the mountain than the normal
beginners slope. The instructor then directed the students
to ski down to the beginners area usually used for
instruction. On her first turn, Gilbert accelerated too
quickly and fell, injuring her knee. This suit followed.
The Maine Skier's and Tramway Passengers'
Responsibilities Act ("MSTPRA"), 26 M.R.S.A. 488 (1988),
states that "each skier who participates in the sport of
skiing shall be deemed to have assumed the risk of the
dangers inherent in the sport . . . ." Although section 488
is designed to protect ski area operators from liability for
skiers' injuries, the statute contains an exception that
imposes liability on a ski area when the skier's injuries are
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"actually caused by the negligent operation of the ski area."
Id. Gilbert presented evidence to the jury that the ski
instructor brought her to a slope that was too steep for a
first-time skier and that this conduct constituted negligent
operation of the ski area.
At the close of the evidence, and after some
deliberation, the district court charged the jury by
paraphrasing section 488. The charge stated:
Maine law provides that everyone who
participates in the sport of skiing
assumes the risk of dangers inherent in
the sport and responsibility for any
injury unless the injury was actually
caused by the negligent operation of the
ski area. In this case, the plaintiff
Diana Gilbert claims that the defendant
Sunday River Skiway Corporation
negligently operated its ski area in
instructing her where to ski as a
beginner enrolled in the Guaranteed Learn
to Ski Program, and that it was this
negligence that caused her injury and
damages that she now seeks to recover.
...
If you find that Sunday River was not
negligent or that its negligence did not
cause Diana Gilbert's injuries, then your
verdict must be for Sunday River.
Gilbert seasonably objected to the instruction. The jury
returned a verdict that Sunday River was not negligent.
Gilbert concedes that the district court's
instruction does not misstate or misdescribe the Maine skier
statute in any way. Rather, Gilbert argues that, because
section 488 arguably does not require the jury to decide
whether she had assumed the risk of her injuries, the court's
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reference to assumption of the risk was so confusing that a
new trial is warranted. For this proposition, Gilbert relies
exclusively on dictum from State v. Gilbert, 473 A.2d 1273
(Me. 1984), which, while affirming a trial court's refusal to
include an irrelevant affirmative defense instruction in a
criminal case, states the unremarkable proposition that "[a]n
instruction on an issue not generated by the evidence would
serve only to confuse or mislead the jury." Id. at 1277.
Gilbert's reliance is misplaced.
We reject Gilbert's argument for two reasons.
First, the court's inclusion of the assumption of the risk
language was not extraneous or irrelevant. To the contrary,
the language was a necessary part of the cogent summary of
the controlling law that the district court appropriately
provided the jury. See Hardin v. Ski Venture, Inc., 50 F.3d
1291, 1295 (4th Cir. 1995)(noting it would be "truly bizarre"
if the district court were not allowed to cite assumption of
the risk language in the controlling skier statute in its
instructions). "The instructions, rather than being
overinclusive, were thorough." State v. Baker, 505 A.2d 96,
98 (Me. 1986). Second, assuming for the sake of argument
that the court's summary of section 488 constitutes an
erroneous instruction on an issue not generated by the
evidence, we are at a loss to see how Gilbert suffered legal
prejudice as a result. "An error in jury instructions will
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warrant reversal of a judgment only if the error is
determined to have been prejudicial, based on a review of the
record as a whole." Davet v. Maccarone, 973 F.2d 22, 26 (1st
Cir. 1992). The charge was a model of clarity in directing
the jury to decide whether Sunday River was negligent in its
operation of the ski area. These instructions gave the jury
ample guidance and leeway to find Sunday River negligent.
How an accurate description of the applicable law could have
deflected a reasonable jury from deciding whether Sunday
River was negligent truly escapes us.
Affirmed. Costs to the Appellee.
Affirmed. Costs to the Appellee.
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