Lopez v. Ski Apache Resort

APODACA, Judge

(specially concurring).

I concur in all of Judge Donnelly’s opinion but file this special concurrence only to emphasize that application of comparative negligence principles to the Ski Safety Act (Act) does not conflict with New Mexico case law or with the language of the Act.

Defendants argue that under the Act, Ms. Branson expressly assumed the risk of any injuries resulting from a collision with the ski lift tower. They rely primarily on Section 24-15-10(B), which states that the skier:

accepts as a matter of law the dangers inherent [in skiing] insofar as they are obvious and necessary. Each skier expressly assumes the risk of * * * any injury * * * caused by * * * lift towers and components thereof * * * which are plainly visible * * *; except for any injuries to persons * * * resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978.

Defendants further argue, based on this language, that the Ski Safety Act does not incorporate comparative negligence principles because (1) the legislature incorporated the doctrine of primary assumption of the risk into the statute and (2) the supreme court’s decision in Scott v. Rizzo does not require the Act to be interpreted in light of comparative negligence principles.

It is true that, at the time the Act was amended in 1979 to include the concept of assumption of the risk, see Laws of New Mexico 1979, ch. 279, New Mexico had not yet adopted the doctrine of comparative negligence. At that time, the concept of assumption of the risk had been divided into the concepts of “primary” and “secondary” assumption of the risk. Williamson v. Smith, 83 N.M. 336, 340-341, 491 P.2d 1147, 1151-52 (1971). Because the legislature, did not provide a statutory definition of the term, ordinarily we would look to the case law to determine the meaning. See Buzbee v. Donnelly, 96 N.M. 692, 700, 634 P.2d 1244, 1252 (1981) (“[w]hen a statute uses terms of art, we interpret those terms in accordance with case law interpretation or statutory definition of those words, if any [exists].”). In Smith, our supreme court defined assumption of the risk as incorporating two concepts: “primary” and “secondary” assumption of the risk. “Primary” assumption of the risk was incorporated into the law of duty — i.e., whether defendant owed a duty to plaintiff — while secondary risk assumption was merged into the doctrine of contributory negligence. Williamson v. Smith, 83 N.M. at 340-341, 491 P.2d at 1151-52. Smith held that assumption of the risk would no longer be recognized as an affirmative defense, and “[i]f pleaded and warranted by the evidence, the ground formerly occupied by the doctrine * * * [would] be covered by the law pertaining to negligence and contributory negligence.” Id. at 341, 491 P.2d at 1152.

Thus, contrary to defendants’ argument, when the legislature incorporated the concept of assumption of the risk into the Act, it incorporated both aspects of the doctrine of assumption of the risk. When contributory negligence was replaced with the doctrine of comparative negligence, “secondary” assumption of the risk became subject to the comparative balance. Scott v. Rizzo, 96 N.M. 682, 687, 634 P.2d 1234, 1239 (1981) (“[ajssumption of risk as a form of negligence * * * [is] subject to the comparative negligence rule.”); see also Baxter v. Noce, 107 N.M. 48, 51, 752 P.2d 240, 243 (1988) (“In adopting the doctrine of comparative negligence, we * * * subjected the doctrine of assumption of risk and other concepts based on the claimant’s negligence to a comparative negligence analysis.”).

In Rizzo, our supreme court considered the effect on existing statutory and common-law rules of law of adopting comparative negligence principles and rejected defendants’ argument that comparative negligence should not be adopted because the legislature had recognized the doctrine of contributory negligence in certain statutes, Scott v. Rizzo, 96 N.M. at 686, 634 P.2d at 1238, and because of potential conflicts with existing law. Id. at 687, 634 P.2d at 1239. The supreme court stated that “legislative enactments designed to make the judge-made rule work * * * cannot be taken as legislative integration of the rule into statutory law.” Id. The court further stated:

We make no effort to catalog or determine how various rules will be affected by the comparative negligence doctrine. Adaptations will be made on a case-by-case basis. Our purpose is to emphasize that if negligence or negligence-related concepts are a basis for liability, the comparative negligence doctrine applies

Id. at 688, 634 P.2d at 1240.

The Act imposes various duties on both the skier and the ski area operator. In doing so, the Act is no different from the duties imposed by other statutes, see, e.g., NMSA 1978, § 41-11-1 (Repl.Pamp.1989) (one who serves liquor to intoxicated person can be held liable); § 60-7A-16 (Repl.Pamp.1987) (violation of Liquor Control Act to sell or serve alcoholic beverages or procure alcoholic beverages to intoxicated person knowing that person is intoxicated); §§ 66-7-301 to 66-7-416 (Repl.Pamp.1987 & Cum.Supp.1991) (traffic laws), and the common law, see, e.g., SCRA 1986, 13-1201 (Repl.1991) (duty of driver to use ordinary care); SCRA 1986, 13-1207 (Repl.1991) (duty of passenger to use ordinary care); SCRA 1986, 13-1305 to -1319 (Repl.1991) (duties of landowners). Comparative negligence principles have been incorporated into other statutes. See Baxter v. Noce, 107 N.M. 48, 52, 752 P.2d 240, 244 (1988) (supreme court construed Dram Shop Act as incorporating principles of comparative negligence); see also Wilson v. Galt, 100 N.M. 227, 231, 668 P.2d 1104, 1108 (Ct.App.1983) (adoption of comparative negligence meant that Uniform Contribution Among Tortfeasors Act no longer had force with respect to contribution among concurrent tortfeasors).

If there is an independent basis for finding a duty on behalf of a defendant, then primary assumption of the risk, which is just an alternative expression for the concept that the defendant owed no duty, does not apply. See Thompson v. Ruidoso-Sunland, Inc., 105 N.M. 487, 491, 734 P.2d 267, 271 (Ct.App.1987) (primary assumption of the risk did not bar plaintiff’s claim where, under New Mexico Racing Commission regulations and landowner’s common-law duty to a business invitee, defendant had a duty to exercise ordinary care to prevent injury to plaintiff). Thus, in light of the Act’s declaration that both ski resort operators and skiers have duties, I see no reason to distinguish the Ski Safety Act from the rest of New Mexico’s law and interpret it consistently with the principles enunciated by our supreme court in Scott v. Rizzo.

The language of the Act itself indicates that comparative negligence principles should apply because it allocates the liability for injuries due to the skier’s breach of duty onto the skier and allocates the liability for injuries due to the operator’s breach of duty onto the operator. §§ 24-15-10, - 15-11. It would make no sense to interpret the Act as imposing all risk of loss onto the skier where both parties were negligent when the Act clearly states that:

Any ski area operator shall be liable for loss or damages caused by the failure to follow the duties set forth in Sections 24-15-7 and 24-15-8 NMSA 1978 where the violation of duty is causally related to the loss or damage suffered * * *. The ski area operator shall not be liable to any * * * skier acting in violation of his duties * * * where the violation of duty is causally related to the loss or damage suffered.

§ 24-15-11; see also § 24-15-10. These apparently contradictory clauses only make sense if interpreted to mean that each party is responsible for the damages attributable to his or her own fault, in other words, comparative negligence. “It is * * * a cardinal rule of construction that, where possible, effect must be given to every part of a statute. The court’s duty is to, so far as practicable, reconcile different provisions so as to make them consistent, harmonious and sensible.” State ex rel. Clinton Realty Co. v. Scarborough, 78 N.M. 132, 135, 429 P.2d 330, 333 (1967). Additionally, Section 24-15-10(B), which imposes upon the skier the risk of injury associated with plainly visible ski lift towers, limits the skier’s assumption of risk in two ways: (1) it does not apply if the danger is not necessary and obvious, and (2) it does not apply if the injury resulted from a breach of a duty by the ski area operator. § 24-15-10(B). Thus, defendants’ claim that the Act imposes all risk associated with skiing onto the skier must fail. Instead, the Act imposes on each party the liability for injuries associated with that party’s breach of a duty.