(dissenting).
While I agree with portions of the majority, opinion, I am unable to agree with its reading of the Ski Safety Act (Act), NMSA 1978, Sections 24-15-1 to 24-15-14 (Repl.Pamp.1991), or its application of the Act to the stipulated facts. I therefore dissent.
I agree with the majority that comparative negligence principles apply in cases where the breach of duties imposed by the Act proximately cause damages. Additionally, I recognize that Section 24-15-10 contains exceptions which in a proper case would allow recovery against a ski area operator. My disagreement is with the majority opinion’s interpretation of the Act and with application of that interpretation to the stipulated facts. The majority concludes that, notwithstanding the stipulated facts, material issues of fact exist as to whether Defendants breached a duty under either Section 24-15-7 or -8. I disagree. I would hold that where, as here, the parties have stipulated that the lift tower in question was plainly visible and that the ski area operator did not cause the collision, Branson assumed as a matter of law the risk of injuries resulting from her collision with the lift tower and, therefore, is barred from recovery.
Summary judgment is proper where there is no dispute as to the facts but rather only as to the legal effect of those facts. See General Elec. Credit Corp. v. Tidenberg, 78 N.M. 59, 61, 428 P.2d 33, 35 (1967). Plaintiffs have stipulated that:
All allegations of violations of the New Mexico Ski Safety Act found in the Plaintiff’s Complaint referring to “particular hazards or dangers,” “unusual obstacles or hazards,” and maintaining ski lifts in a “safe condition” refer only to the absence of manmade protective devices on the lift tower with which Plaintiff collided, the absence of marking at the top of the slope of the presence of the lift tower, and the absence of a warning of the danger presented by the lift tower. [Emphasis added.]
The result of this stipulation is that the only questions raised by Plaintiffs are legal rather than factual. Plaintiffs ask this court to decide whether the New Mexico Ski Safety Act, as a matter of law, (1) requires padding of lift towers, (2) requires marking the top of slopes to inform skiers of the presence of lift towers or (3) requires warning skiers of the presence of lift towers on the slopes? In light of this stipulation and the stipulation that “[t]here is no allegation that any violation of the ski area operator * * * contributed to cause Branson’s fall or loss of control,” I believe the majority’s conclusion that there are issues of material fact remaining which would preclude a finding of summary judgment is erroneous. Although the majority correctly explains that the question of whether a duty exists is a question of law for the court to determine, the opinion disregards the stipulations by holding that there are certain factors to consider in determining whether a lift tower constitutes a “particular hazard or danger.” The factors listed by the majority include (1) the nature and design of the lift tower, (2) the terrain, and (3) the distance at which the hazard would reasonably become apparent to an approaching skier. The only hazards claimed by Plaintiffs are failure to pad and failure to warn of the tower’s presence.1 The nature and design of the tower is irrelevant, as is the terrain. The distance at which a skier would see the tower is also irrelevant in light of the stipulation that the tower was plainly visible. Plaintiffs have raised legal questions regarding the duties of ski area operators under the Act. After reviewing the pertinent provisions of the Act, I conclude that a ski area operator has no duty, as a matter of law, to pad or warn of the presence of a plainly visible ski tower where the only “particular hazard or danger” claimed is that the lift tower is unpadded.
Although I believe that summary judgment was proper because there remain no material factual issues, I will discuss the pertinent provisions of the Act in order to comment upon the majority’s analysis in this case. Before focusing on the specific sections called into question, it is useful to examine the Act generally to determine what the legislature sought to accomplish. See State v. Chavez, 77 N.M. 79, 82, 419 P.2d 456, 457 (1966) (“The fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature.”).
A. New Mexico’s Ski Safety Act
Generally, the Act divides areas of responsibility between the ski area operator and the skier. See § 24-15-2; cf. Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 428 N.W.2d 742, 743 (1988) (discussing Michigan’s Ski Area Safety Act). Under Section 24-15-2, an individual is primarily responsible for her own safety while engaging in the sport of skiing. That Section also recognizes that there are inherent risks in the sport, essentially impossible to eliminate, which should be understood by each skier. While the primary responsibility for the safety of the skier on the slopes rests with the skier, the primary responsibility for the safety of operation, maintenance, repair, and inspection of ski lifts and tramways rests with the ski area operator. § 24-15-2. This division of responsibilities is carried forth in Sections 24-5-11, -12, and -13 which discuss the potential liability of the skier and ski area operator.
In this case, Plaintiffs stipulated that Branson was injured while skiing on the slopes; therefore, we are not concerned with the operation or maintenance of the ski lift itself.2 Under Section 24-15-13, the 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.” Under Section 24-15-11, the ski area operator is liable for “loss or damages caused by the failure to follow the duties set forth in Sections 24-15-7 and 24-15-8 * * * where the violation of duty is causally related to the loss or damage suffered * * *.” Thus, in order to determine whether Branson can recover for injuries suffered while skiing, we must examine the interplay between Section 24-15-10 and Sections 24-15-7 and -8.
In discussing Section 24-15-10, it is important to make the distinction between assumption of the risk in its primary and secondary senses. As the majority notes, the legislature used “assumption of the risk” in this section in its primary sense. Our supreme court in Williamson v. Smith, 83 N.M. 336, 340, 491 P.2d 1147, 1151 (1971) (quoting Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959)), explained the two principal meanings of assumption of risk. “In one sense — hereafter called its ‘primary’ sense — ‘it [assumption of risk] is an alternate expression for the proposition that the defendant was not negligent; i.e., either owed no duty or did not breach the duty owed.’ ” See also Thompson v. Ruidoso-Sunland, Inc., 105 N.M. 487, 491, 734 P.2d 267, 271 (Ct.App.1987). As to the second meaning, Williamson holds assumption of risk in the secondary sense identical to contributory negligence and abolishes the former as a separate defense. 83 N.M. at 337, 491 P.2d at 1148; see also Diaz v. McMahon, 112 N.M. 788, 790 & n. 2, 819 P.2d 1346, 1348 & n. 2 (Ct.App.1991). As stated in Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398, 403 (1978):
Where primary assumption of risk exists, there is no liability to the plaintiff, because there is no negligence on the part of the defendant to begin with; the danger to plaintiff is not one which defendant is required to extinguish or warn about; having no duty to begin with, there is no breach of duty to constitute negligence.
B. Duties of Skiers Under the Act
Section 24-15-10 first recognizes that “skiing as a recreational sport is inherently hazardous to skiers, and it is the duty of each skier to conduct himself carefully.” Plaintiffs acknowledge that Branson breached this duty and that she alone is responsible for her fall. Plaintiffs’ claim against the ski area operator is only for the enhanced portion of Branson’s damages allegedly resulting from colliding with an unprotected or unpadded lift tower. Cf. Duran v. General Motors Corp., 101 N.M. 742, 749-50, 688 P.2d 779, 786-87 (Ct.App.1983) (holding that in enhanced injury case claimant must show that defect caused injuries over and above those which otherwise would have been sustained and demonstrate degree of enhancement (citing Huddell v. Levin, 537 F.2d 726 (3d Cir.1976))), cert. quashed, 101 N.M. 555, 685 P.2d 963 (1984).
Subparagraph (B) of Section 24-15-10 provides:
[First Part] A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing areas, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines, and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property 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. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability * * *.
[Second Part] The responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of the individual or individuals involved in such collision, except where the ski area operator is involved in such collision or where such collision resulted from any breach of duty imposed upon the ski area operator under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. [Emphasis added.]
§ 24-15-10(B). Plaintiffs argue that the exceptions to the first part of Section 24-15-10(B) raise a fact question as to whether or not the ski area operator is liable for any enhanced injuries Branson may have suffered.
Plaintiffs, as well as the majority, seem to read Section 24-15-10(B) as simply containing one exception to primary assumption of the risk based on a breach of duty by the ski area operator under either Section 24-15-7 or -8. A careful reading of Section 24-15-10(B), however, suggests the answer is not that simple. Section 24-15-10(B) actually addresses two different concerns: “Responsibility for * * * injury” and “responsibility for collisions.” For the sake of reference, I have identified the former as “first part” and the latter as “second part” in Section 24-15-10(B) quoted above.
Reading the two parts separately, it seems reasonably clear that each skier expressly assumes the risk in the primary sense for any injury caused by plainly visible lift towers and other objects or conditions described in the Act which are plainly visible unless any of the injuries result from a breach of duty imposed on the ski area operator under either Section 24-15-7 or -8. This means that if there is no breach of duty by the ski area operator under either of those two sections, then the skier assumes the primary risk and the sole individual responsibility for any injury caused by any of those inherent risks, including ski towers. If, as the majority notes, there is a breach of duty by the ski area operator that caused or contributed to the injury, then assumption of the risk is viewed in its secondary sense, i.e., contributory negligence and the negligence of the skier and the ski area operator may be compared. Because of the stipulations, however, including the stipulation that the ski tower was plainly visible in the ski area, neither Section 24-15-7 nor -8 applies, and therefore, Defendants are entitled to summary judgment.
As noted, the second part of Section 24-15-10(B) places the sole responsibility for collisions on the individual involved in the collision with two possible exceptions: (1) where the ski area operator is involved in such collision or (2) where the collision results from any breach of duty by the ski area operator under either Section 24-15-7 or -8.3 Here, the parties stipulated that any injuries or damages suffered by Bran-son were the result of her fall and/or collision with the lift tower and that Defendants did not contribute to cause her fall or loss of control. Plaintiffs also stipulated that “[t]he ski area operator was not involved in the collision.” If Branson is solely responsible for the collision, how then can she recover under Section 24-15-10(B)? 4
1. Skier’s Assumption of Risk
Because it is undisputed that' the lift tower was plainly visible, Branson expressly assumed the risk of colliding with that structure under Section 24-15-10. She assumed that risk as a matter of law unless it can be said that the ski area operator breached a duty owed to Branson under either Section 24-15-7 or -8. I now examine those duties.
a. Ski Area Operator’s Duties Under Section 24-15-7
Section 24-15-7 lists nine duties that each ski area operator has with respect to the skiing area. As noted by the majority, we are concerned with only two of those duties:
C. to mark conspicuously * * * portions of [slopes or trails] which present an unusual obstacle or hazard * * *
* * * * 3k *
I. to warn of or correct particular hazards or dangers known to the operator where feasible to do so.
§ 24-15-7(0), -7(1). First, under subparagraph (C), Plaintiffs claim that the ski tower was an “unusual obstacle or hazard” of which the ski area operator had a duty to inform Branson by appropriately marking the top of the slope. I disagree. As I read Section 24-15-10(B), the legislature specifically considered lift towers “inherent risks” which are assumed by the skier as a matter of law.5 In addition, although there is no New Mexico case on point, other jurisdictions, as well as common sense, support the notion that a ski tower is not an “unusual obstacle or hazard” but rather an obvious and necessary part of skiing. See, e.g., Alaska Stat. § 9.65.135(c)(1)(E) (1983 & Supp.1991) (“ ‘inherent risks of skiing’ means the dangers or conditions which are an integral part of the sport of skiing, including, but not limited to * * * collisions with lift towers * * *.”); Colo.Rev.Stat. § 33-44-103(10) (Supp.1991) (“ ‘Inherent dangers and risks of skiing’ means those dangers or conditions which are an integral part of the sport of skiing, including * * * impact with lift towers * * *.”); Conn.Gen. Stat.. § 29-212 (1990) (lists “conspicuously marked lift towers” as a “hazard[ ] inherent in the sport of skiing”); Idaho Code § 6-1106 (1990 & Supp.1991) (skier expressly assumes the risk of any injury caused by lift towers); N.D.Cent.Code § 53-09-06 (Repl.1989) (skier expressly assumes risk of injury from lift towers); Ohio Rev.Code Ann. § 4169.08 (Anderson Repl.1991) (skier expressly assumes risk for damages from lift towers); W.Va.Code § 20-3A-5 (Repl.1989) (skier assumes risk of injury from lift towers). See generally Lori J. Henkel, Annotation, Ski Resort’s Liability for Skier’s Injuries Resulting From Condition of Ski Run or Slope, 55 A.L.R.4th 632, § 8 (1987 & Supp.1991). Moreover, Plaintiffs have alleged nothing extraordinary about this particular ski tower which would transform it from an inherent risk to an “unusual obstacle or hazard.”
Second, Plaintiffs claim that the ski area operator had a duty to “warn of or correct particular hazards or dangers” associated with the ski tower. §24-15-7(1). Again, I disagree that a plainly visible lift tower constitutes a “particular hazard or danger.” The comments after Section 24-15-7 refer to 4 American Jurisprudence Amusements and Exhibitions § 54, which explains that the operator of a place of amusement has a duty to warn his patrons of any dangers known to him, which are not known to the patrons or not observable by them in the exercise of reasonable care for their own safety. In light of the stipulation that the tower was plainly visible in the skiing area and general common knowledge, I do not believe that the ski area operator had a duty to warn the skier of the presence of the lift tower.
Neither do I think that the ski area operator had a duty, under Section 24-15-7(1) to “correct particular hazards” allegedly associated with the lift tower.6 The risks associated with a plainly visible lift tower are specifically allocated to skiers alone under Section 25-15-10(B). When Branson elected to ski the slope, she expressly assumed the risks associated with any lift towers, padded or unpadded, present on that slope. To interpret Section 24-15-7(1) to mean that ski area operators have a duty to correct the dangers presented by ski towers despite the Act’s recognition that this danger is inherent in the sport of skiing and is “essentially impossible to eliminate” would read Section 24-15-10 out of existence. See also § 24-15-2. It is the duty of courts to construe statutes in harmony and give effect to all its parts in arriving at the intent of the legislature. General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 76, 703 P.2d 169, 173 (1985). Moreover, if the New Mexico Legislature had wished to impose the duty of padding lift towers on ski area operators it could have done so expressly. Cf. Colo.Rev.Stat. § 33-44-107(7) (Supp.1991) (duty to adequately cover man-made structures with shock-absorbent material only when not visible from a distance of at least one hundred feet); N.Y.Gen.Oblig.Law § 18-103 (1989 & Supp. 1992) (requires ski area operator to pad lift towers within the boundary of a slope). Finally, if we are to say that a plainly visible lift tower should be padded, how can we not say similar protective devices must also be placed around all rocks, trees, other forms of forest growth, or the like? An appellate court should not construe statutes in a way that will achieve an absurd result or defeat the intended objective of the legislature. State v. Herrerra, 86 N.M. 224, 226, 522 P.2d 76, 78 (1974).
b. Ski Area Operator’s Duties Under Section 24-15-8
Section 24-15-8 sets forth the duties of the ski area operator with respect to ski lifts. The ski area operator is required to operate, repair, and maintain all ski lifts in a safe condition. A “ski lift” is defined as “any device operated by a ski area operator used to transport passengers by single or double reversible tramway, chair lift or gondola lift, T-bar lift, J-bar lift, platter lift or similar device or a fiber rope tow.” § 24-15-3(A). In addition, the majority cites to Section 24-15-2 which explains the purpose of the Act as including the statement that “it is the policy of New Mexico to protect its citizens and visitors from unnecessary hazards in the operation of ski lifts * * I think the legislature intended “operation” to mean the actual transportation of skiers up the slope.
As previously discussed, Section 24-15-10 sets forth the duties of the skiers. The section expressly provides that:
A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing * * * including any injury caused by the following: * * * lift towers and components thereof * * *. [Emphasis added.]
It is important to note that the legislature specifically chose to use the term “lift tower” as opposed to “ski lift” when delineating the duties of and risks assumed by skiers. I believe the Act distinguishes the portion of the lift tower on the ground which may be part of the slope and the operation of the ski lift itself in transporting skiers to the top of the hill. This language suggests that the legislature anticipated the situation we have before us and determined that collision with a lift tower was the sole responsibility of the skier, and that the duties of ski area operators with regard to ski lifts were not to be confused with the duties of skiers with regard to ski towers.
Since Section 24-15-8 is included as an exception to the assumption of risk imposed under Section 24-15-10(B), some breach of duty must have been contemplated; otherwise, there would have been no purpose in including Section 24-15-8 as an exception. Reading the two Sections together, it would seem reasonable that the legislature intended for Section 24-15-8 to provide an exception to the primary assumption of risk when a breach of duty with respect to the operation of the ski lift causes an injury to a skier on the slopes, such as an injury caused by a falling gondola or part of the lift itself.
C. Support From Other Jurisdictions
The result I reach finds support in cases from other jurisdictions applying either common-law principles or statutes similar to the New Mexico Ski Safety Act to almost identical or similar fact situations.7
In Leopold v. Okemo Mountain, Inc., 420 F.Supp. 781 (D.Vt.1976), for example, a suit was brought on behalf of the estate of the skier who was killed when he collided with an unpadded chair lift tower. Plaintiffs attempted to establish that the ski area operator was negligent in failing to cover the tower with cushion pads or some other form of protection. The court concluded that the tower was an inherent risk in the sport of skiing and was an obvious and necessary risk to those who participate in that sport. Id. at 786-87. The court explained that the skier knew and could have easily observed that the towers were not padded and if he believed that the trail or the towers presented risks which were too great, “he could have chosen not to proceed.” Id. at 787. By proceeding, the skier “willingly assumed all the obvious and necessary risks involved in [the] descent, including the danger that he might collide with a tower if he lost his control * * * t>
Interpreting a provision similar to our Section 24-15-10, the Court of Appeals of Michigan, in Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 428 N.W.2d 742 (1988), held that it was clear from the plain and unambiguous wording of that state’s statute that the legislature intended to place the burden of certain risks or dangers on skiers, rather than ski area operators. Significantly, the court held that the list of “obvious and necessary” risks assumed by the skier included natural phenomena and types of equipment that are inherent parts of ski area, such as lift towers and other structures. Id. 428 N.W.2d at 744. The court held that all of these conditions are inherent to the sport of skiing.
In Danieley v. Goldmine Ski Associates, 218 Cal.App.3d 111, 266 Cal.Rptr. 749 (1990), a skier collided with the tree located near the edge of the ski run. Although without the benefit of a ski safety act, the California court relied on the Michigan Ski Area Safety Act, as discussed in Schmitz, declaring that this Act reflects pre-existing common law. 266 Cal.Rptr. at 756. The Danieley court affirmed summary judgment in favor of the ski area operator, holding that the ski area operator owes no duty to remove the tree with which the skier collided. In doing so, the court relied on the doctrine of the assumption of risk as articulated in Schmitz. 266 Cal.Rptr. at 757; see also Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4 (1st Cir.1991) (held that skier was prohibited from maintaining action against ski area operator for injuries which result from any risk, danger, or hazard inherent in the sport, including entanglement with netting generally used as a barrier to mark hazards and to minimize the dangers posed to skier when approaching turns and the edge of trails); Burke v. Ski Am., Inc., 940 F.2d 95 (4th Cir.1991) (interpreting Pennsylvania law, court affirmed directed verdict in favor of ski area operator where plaintiff sued for damages suffered when she fell and slid into trees and rocks beside a trail); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir.1983) (interpreting the Pennsylvania Skier’s Responsibility Act and applying primary assumption of risk to affirm summary judgment in favor of ski area operator where skier slid into a telephone pole and two nearby snowmaking pipes).
The majority dismisses the cases from other jurisdictions because of “basic differences in the language of our Act.” My review of the statutes from several states shows that these statutes employ language similar to that contained in New Mexico’s Ski Safety Act. See, e.g., Idaho Code §§ 6-1101 through 6-1109 (1990 & Supp.1991). Moreover, the fact that the statute of the other states may not include the qualifying language to sections comparable to our Section 24-15-10(B) does not render case law interpreting the foreign statutes inapplicable. It only means that under our statute we must reconcile the qualifying language in a way that gives purpose to legislative intent. I think that can be done without reading Section 24-15-10(B) out of existence. I have attempted to do so.
D. Conclusions
I believe that the majority in their attempt to find a colorable claim disregards not only the stipulated facts and plain language of the Act, but undermines several important public policy considerations.
Those states, including New Mexico, which have adopted ski legislation often share similar concerns. Skiing usually is practiced by a large number of residents and attracts a large number of nonresidents which significantly contributes to the economy of the state. Litigation unnecessarily increases ski area operators’ costs, and insurance premiums continue to rise. States have a legitimate interest, as a matter of public policy, in maintaining the viability of the ski industry within their borders. Most ski legislation attempts to divide areas of responsibility and liability between the ski area operator and the skier, recognizing that there are risks inherent in the sport for which the skier must remain solely responsible, and making an effort to prevent the ski area operator from becoming an insurer for the safety of all skiers upon its slopes. See, e.g., Colo.Rev.Stat. § 33-44-102 (1990); Idaho Code § 6-1101 (1990 & Supp.1991); Mont.Code Ann. § 23-2-731 (1990); N.J.Rev.Stat. § 5:13-1 (1988); NMSA 1978, § 24-15-2 (Repl.Pamp.1991); N.Y.Gen.Oblig.Law § 18-101 (1989); N.Y.Lab.Law § 866 (1988); N.D.Cent.Code § 53-09-01 (Repl.1989); Utah Code Ann. § 78-27-51 (Repl.1992); W.Va.Code § 20-3A-1 (Repl.1989).
In addition to legislatively recognized public policy, New Mexico has a clear history of reluctance in allowing recovery for sports related injuries. In Kabella v. Bouschelle, 100 N.M. 461, 463, 672 P.2d 290, 292 (Ct.App.1983), this court, applying the common law, affirmed summary judgment for the defendant in a case where the plaintiff was injured in an informal game of tackle football. We quoted with approval the following from Kuehner v. Green, 436 So.2d 78, 81 (Fla.1983) (Boyd, J., specially concurring):
Historically, the courts have been reluctant to allow persons to recover money damages for injuries received while participating in a sport, especially a contact sport, unless there was a deliberate attempt to injure. In denying recovery, the courts have often explained that a person who participates in a sport assumes the risk that he or she may be injured.
Similarly, in Kabella, we said that “[vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Id. at 465, 672 P.2d at 294. I believe that these statements from Kabella capture the essence of the legislative intent in enacting the Ski Safety Act.
For the reasons stated, I respectfully dissent.
. Failure to warn presents no hazard because Plaintiffs stipulated that the lift tower was plainly visible.
. Although we are not concerned with the operation or maintenance of the ski lift, I will comment on the majority’s reliance on Section 24-15-8 later in this opinion.
. The majority misreads the language of this Section in claiming that "this portion of the section reaffirms the imposition of liability on the ski area operator when the ski area operator breaches a duty imposed by Sections 24-15-7 or -15-8 * * Sections 24-15-7 and -8 only come into play under this part of Section 24-15-10(B) when the collision results from a breach of duty under either of those Sections. Plaintiffs have stipulated that the collision did not result from any breach of duty by the ski area operator.
. Although not raised by the briefs, the second part of Section 24-15-10(B) arguably forecloses a claim for common law second collision or enhanced injury.
. This was recognized by the trial judge who stated: "[A] lift tower and its components are, by the terms of the Act, an inherent risk, which is obvious and necessary, which the Plaintiff assumed as a matter of law, and additionally, by both common sense and judicial notice is a common, ordinary, everyday, visible, recognizable, and inherent risk in all ski areas.”
. It is interesting to note that in Burke v. Ski Am., Inc., 940 F.2d 95, 97 (4th Cir.1991), Plaintiff admitted that although she was aware of the hazards in skiing in general and of the presence of rocks and trees in particular, the rocks and trees which otherwise would be an obvious danger were not an obvious danger because of plastic fencing erected which made her think that they presented no danger at all because the fence would protect her.
. I find the out-of-state cases cited by the majority to be distinguishable. See, e.g., Rimkus v. Northwest Colorado Ski Corp., 706 F.2d 1060, 1062 (10th Cir.1983) (plaintiff testified that he did not see the outcropping of rock where as in this action the parties stipulated that the lift tower was plainly visible); Codd v. Stevens Pass, Inc., 45 Wash.App. 393, 725 P.2d 1008, 1012 (1986) (court held that operator had a duty to discover and warn of latent hazards where as the instant action involves a plainly visible "hazard” and New Mexico’s Act does not require a ski area operator to discover hazards but rather only to warn of those “hazards or dangers known to the operator”).