McGuire v. Sunday River

USCA1 Opinion









March 1, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT


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No. 94-1978

SHARON McGUIRE,

Plaintiff, Appellant,

v.

SUNDAY RIVER SKIWAY CORPORATION,

Defendant, Appellee.

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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. ______________

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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. __________________



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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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