(specially concurring).
I withdraw my former special concurrence and substitute the following:
I agree that the summary judgment in favor of defendant must be reversed. I write separately to emphasize a few points.
First, the Ski Safety Act, NMSA 1978, Sections 24-15-1 to -14 (Repl.1986), specifically recognizes the duty upon which plaintiff bases her claim. Section 24-15-14(A) states:
Unless a ski area operator is in violation of the Ski Safety Act ... with respect to the skiing area and ski lifts, 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 passenger or any representative of a skier or passenger. This prohibition shall not prevent the bringing of an action against a ski area operator for damages arising from injuries caused by negligent operation, maintenance or repair of the ski lift. [Emphasis added.]
Therefore, absent an affirmative defense, defendant is not entitled to summary judgment if there is evidence that plaintiff suffered an accident caused by “negligent operation ... of the ski lift.” Plaintiff’s cause of action is independent of whether she was a “skier” or “passenger” or whether she was on a “skiing area” or using a “ski lift.”
Although defendant’s brief states that “the ski lift itself had absolutely nothing to do with the Plaintiff’s accident,” there is evidence that the operation of the lift contributed to the accident. Plaintiff testified at her deposition as follows:
Q As I understand your testimony, then, you stood up at the unload point, and as soon as you stood up, you stopped instantly right where you stood up; is that right?
A Correct.
Q At the point where you stood up and instantly stopped, where did your chair go? Do you know what path it traveled?
A We’re speaking of about a total lapse of two to three seconds, at which point the chair was behind me and the attendant yelled, “Lady, get out of the way.”
A In the sequence of events that happened, the attendant yelled at me to get out of the way. I was just ready to look down and see why I couldn’t move, but his yelling at me diverted my attention and I turned to the left to see why he was yelling at me to get out of the way. And the next chair was approaching and in order to get out of the way, I threw myself to the right.
Had he not yelled, I would have quickly discovered that my skis were crossed and I would have uncrossed them and gone on my way. I believe at this point my chair had gone on around and was swinging on ahead of me empty, and the approaching chair behind me was ready to hit me and that is why I quickly threw myself to the right to get out of the way.
Defendant’s liability could not be based on the attendant’s shouting a warning to plaintiff (she does not contend that she was in a safe position); but one could infer from plaintiff’s testimony that, as alleged in the complaint, the attendant of the ski lift was negligent in not stopping the lift before the chair could hit her. Such negligence could have been a proximate cause of plaintiff's injury, because if she had noted that the ski lift was coming to a halt, she may not have thrown herself down and hurt herself. There may be additional evidence upon which defendant could base a successful motion for summary judgment; but such evidence was not argued on this appeal.
Second, I agree with the majority that plaintiff’s failure to comply with the notice requirement of Section 24-15-10(C)(3) does not bar plaintiff’s recovery, because Section 24-15-11 bars recovery when a patron violates the duties set forth in Section 24-15-10 only “where the violation of duty is causally related to the loss or damage suffered.” This is a peculiar result, because there would almost never be a sanction for failure to comply with the notice requirement. Nevertheless, the result apparently was intended by the legislature. The duty of a patron to report an accident was added to the Ski Safety Act in 1979. Senate Bill 270 of that year provided for the Act to contain the following provisions:
Section 24-15-10(C):
“No person shall:
“(3) when involved in a skiing accident, depart from the scene of the accident without leaving personal identification including name and address, and before notifying the proper authorities or obtaining assistance when that person knows that any other person involved in the accident is in need of medical or other assistance.”
Section 24-15-13:
“Any skier shall be liable for loss or damages resulting from violations of the duties set forth in [Section 24-15-10], and shall not be able to recover from the ski area operator for any losses or damages where the violation of duty is causally related to the loss or damage suffered.”
Section 24-15-14:
“C. Every person who claims damages from a ski area operator for injuries sustained as a result of his use of a ski lift or ski area shall notify the ski area operator within ninety days after an occurrence giving rise to the claim with a written notice stating the time, place and circumstances of the loss or injury.
“D. No suit or action for damages arising from injuries incurred as a result of the use of a ski lift or ski area shall be maintained and no court shall have jurisdiction to consider any suit or action, unless notice has been given as required by this section, or unless the ski area operator had actual notice of the occurrence. The time for giving notice does not include the time, not to exceed ninety days, during which the injured person is incapacitated from giving notice by reason of the injury.”
The Senate Judiciary Committee substitute for Senate Bill 270 deleted subparagraphs C and D of Section 24-15-14, but maintained a duty to report accidents under Section 24-15-10 and did not materially change Section 24-15-13. This suggests a conscious decision to require notice but not to bar a lawsuit whenever notice is not provided. In any case, we must follow the clear language of the statute.
Third, I do not think that the summary judgment can be upheld on the basis that plaintiff failed to comply with Section 24-15-9(D), which requires a passenger not to “use any ski lift unless the passenger has the ability to use it safely without any instruction on its use by the ski area operator or requests and receives instruction before boarding the ski lift[.]” (Emphasis added.) Plaintiff acknowledged that she did not have the ability to use the lift safely. She testified, however, that she requested instruction regarding the ski lift from a ski area employee. Although plaintiff’s affidavit stated that she did not receive instruction on use of the ski lift, at her deposition she testified that the instructor told her that all she needed to do to get off the lift was “just stand up and ski.” In reviewing a summary judgment, we construe the evidence in the manner most favorable to the party opposing the judgment. We can reconcile plaintiff’s two sworn statements by construing her affidavit as stating that the instruction she received at the ski school was not true instruction — it was totally inadequate.
Applying the statute to these facts, I would not read Section 24-15-9(D) as requiring the passenger to receive adequate instruction. Plaintiff complied with her duty under that provision if she requested instruction and received some, albeit faulty, instruction. Interpreting Section 24-15-9(D) to bar a patron from suing if he or she received instruction that was not adequate would impose less liability on a ski area operator if it provided inadequate instruction than if it provided proper instruction. Because the statutory language does not compel that illogical result, we should not infer such a meaning. Plaintiffs belief when she boarded the ski lift that she had not been instructed adequately on the use of the ski lift may be relevant to other potential defenses of defendant; but Section 24-15-9(D) does not bar liability on that basis.
Finally, I agree with the majority that plaintiff’s briefs on appeal do not address the claim in her complaint based on negligent instruction; but the claim also was not addressed specifically in the district court’s summary judgment. Perhaps the claim was abandoned in district court. The appropriate disposition would be to leave the matter to the district court in the first instance.