Present: All the Justices
PATRICIA STONE HOAR, AS
GUARDIAN OF THOMAS HOAR
OPINION BY
v. Record No. 972334 CHIEF JUSTICE HARRY L. CARRICO
November 6, 1998
GREAT EASTERN RESORT MANAGEMENT,
INC., t/a MASSANUTTEN SKI RESORT
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Joshua L. Robinson, Judge Designate
On January 19, 1992, Thomas Hoar (Thomas) suffered
disabling brain damage in a skiing accident on a ski trail
maintained at a ski area near Harrisonburg by Great Eastern
Resort Management, Inc., t/a Massanutten Ski Resort
(Massanutten). In a motion for judgment alleging
negligence on the part of Massanutten, Thomas’s wife and
guardian, Patricia Stone Hoar (the Guardian), sought
recovery of damages for Thomas’s injuries. A jury returned
a verdict in the Guardian’s favor in the amount of
$6,170,563.00. Upon motion of Massanutten, the trial court
set the verdict aside and entered judgment in favor of
Massanutten. We awarded the Guardian this appeal and
granted Massanutten’s assignments of cross-error.
At the outset, Massanutten raises a question
concerning the standard we should apply in reviewing the
judgment of the trial court. Massanutten argues that when
a trial court sets aside a jury verdict, the verdict is not
entitled to the same weight as one that has been approved
by the court. Mann v. Hinton, 249 Va. 555, 556-57, 457
S.E.2d 22, 23 (1995). Massanutten also asserts that the
jury verdict in this case is entitled to little or no
weight because it was in the exact amount of Thomas’s
special damages. When such a verdict is returned,
Massanutten says, “it bespeaks a compromise . . ., the
integrity of the jury’s finding on liability is suspect,
and the . . . finding on liability is impeached.” Ford
Motor Co. v. Bartholomew, 224 Va. 421, 433-34, 297 S.E.2d
675, 681-82 (1982). Further, Massanutten maintains, the
trial court was of opinion there was no evidence to support
the verdict in any event. Additionally, Massanutten says,
neither party seeks a new trial. “Under these
circumstances,” Massanutten concludes, “the standard of
review should focus on whether there is evidence to support
the trial court’s action entering judgment for Massanutten
rather than whether there is evidence to support the jury
verdict.”
However, it is the established rule that “[e]ven
though the trial court [has] set the verdict aside, we
[will] state the facts and reasonable inferences to be
drawn therefrom in the light most favorable to the [party]
who prevailed before the jury.” Stump v. Doe, 250 Va. 57,
2
58, 458 S.E.2d 279, 280 (1995). See also Griffett v. Ryan,
247 Va. 465, 467, 443 S.E.2d 149, 150 (1994). “[A]nd if
there is any credible evidence in the record that supports
the verdict, we must reinstate that verdict and enter
judgment thereon.” Id.
Stated in the light most favorable to the Guardian,
the evidence shows that on January 17, 1992, two days
before Thomas’s accident, Massanutten opened to the public
a new, more advanced ski trail, known as “Diamond Jim.” 1
This trail was built in a heavily wooded area by a “cut and
fill” process, which is used when a ski run does not follow
the natural “fall line” of a hill or mountain. According
to an expert witness called by the Guardian, “[t]he fall
line of a hill or a slope is the direction a ball would
roll if you were to let it go and it rolled slowly [or] the
direction water would flow if left to itself.”
In the cut and fill process, the side of a hill or
mountain is cut away to form one side of a ski run and the
excavated soil is used to fill in the opposite side to make
the run even and to double its width. In the area of
Diamond Jim where Thomas was injured, the cut and fill
1
Ski trails are marked according to their relative
difficulty at each ski resort. Green circles indicate the
trails that are the easiest, blue squares the more
3
process created a “drop-off,” having a vertical drop of
some thirty feet, on the left side of the downhill ski run. 2
The bottom of the drop-off contained rocks and logs. The
drop-off also had a double fall line, meaning that the
hypothetical ball “wouldn’t go straight down the middle of
[the ski] run [but] would taper off [to the bottom of the
drop-off].” The cut and fill process also left a gap
between the left edge of the ski run and the tree line,
which bordered the remainder of the run on both sides,
eliminating a “visual cue to the skier that this is the
edge of the trail, don’t go over here.” 3
The groomed area of the ski run had a snow depth of
two feet. The snow surface was “very hard packed” and the
ground was “extremely hard.” A “berm” of snow, one foot
higher than the groomed area, ran along the left edge of
the run and the snow tapered off to a depth of only a few
inches at the bottom of the drop-off.
difficult, and black diamonds the most difficult at the
particular ski area.
2
The drop-off was variously described by the Guardian’s
witnesses as “very steep,” “a sheer drop-off,” “a 30-foot
cliff,” and “a hidden drop-off.” A Massanutten witness
said the grade of the drop-off was “only slightly steeper”
than the “steeper area . . . on the main run.”
3
In the area where the tree line is interrupted, there are
two individual trees just off the edge of the trail, one 25
inches in circumference and the other 22 inches.
4
Prior to Thomas’s accident, Massanutten had ordered
and received a shipment of bright orange “warning barrier
fencing” for use on Diamond Jim. At the time of the
accident, Massanutten had installed fence posts in the area
where Thomas was injured, but had not yet attached the
bright orange fencing; the fencing was installed “a couple
days later.” 4
As a result of his brain injury, Thomas is incompetent
and was unable to testify. A friend, George Archer Marston
(Marston), a civil engineer who accompanied Thomas to the
Massanutten ski resort on the occasion in question,
testified as a witness for the Guardian. According to
Marston’s testimony, he and Thomas, both experienced
skiers, purchased lift tickets and began skiing about 9:00
a.m. on January 19, 1992. After warming up on some of the
easier slopes, they took a chair lift to Diamond Jim. At
the time, Diamond Jim had been groomed to its left edge,
permitting skiers to ski all the way to that edge. In
addition, snowmaking machinery was blowing snow across the
ski run, blinding skiers using the right side of the run.
4
The jury was instructed that evidence of Massanutten’s
post-accident erection of a fence on the poles installed
pre-accident “is not received as evidence that
[Massanutten] was negligent.”
5
Also, there were “moguls” in the center of the ski run, but
none on the edges. 5
Thomas and Marston skied down the left side of Diamond
Jim without incident. They then took the chair lift for a
second trip down Diamond Jim. After skiing about halfway
down the run, they stopped at a sign marked “slow,” below
which the slope steepened, and talked for a couple of
minutes. Thomas decided to ski down the left side of the
run and, not “going fast,” skied to the left laterally
across the slope, with Marston following.
Marston stated that shortly before Thomas reached the
edge of the slope, he “caught an edge and lost his
balance,[ 6 ] bent at the knees and kind of sat down on the
back of his skis and then slid off the edge of the slope
out of . . . sight.” Marston skied “right up to the edge
expecting to find [Thomas] adjacent to the slope, maybe six
to eight feet below the edge of the slope,” but instead
“found this very steep, large vertical drop.” Thomas was
lying between two logs at the bottom of the drop, “probably
laterally a hundred feet away from [Marston and] over 30
5
A witness described a “mogul” as “a mound that is usually
created by skiers skiing down a steep area and cutting
small hills into the side of the hill.”
6
“Catching an edge” refers to the situation that may result
when, in making a turn, a skier tilts his skis and the
6
feet vertically below [him].” Thomas was unconscious and
bleeding from his nose, mouth, and one ear.
Marston also testified that on his first trip down
Diamond Jim on the morning of January 19, he did not see
the steep drop-off. Marston stated further that, when he
went to see what had happened when Thomas slid out of
sight, he had to ski “right up to the edge[,] . . .
probably three to five feet from the edge,” before he
realized the extent of the drop-off.
Dr. James Broderson (Dr. Broderson), a dentist who had
skied at the Massanutten resort many times, was called as a
witness by Massanutten. He skied down Diamond Jim on the
morning of January 19, 1992, just ahead of Thomas. Dr.
Broderson stopped approximately twenty feet downhill from
the “slow” sign to make sure the course was clear before he
“head[ed] on down.” He observed Thomas skiing toward the
left side of the slope, then trying “to initiate a turn to
the right” but either catching an edge or crossing his
skis, and falling forward “[o]ut of control.”
After Thomas was carried away, Dr. Broderson went to
the bottom of the drop-off where Thomas had been lying to
look “for some evidence of how it was that [Thomas] got
uphill edge catches the snow and causes him to lose his
balance.
7
hurt.” There, Dr. Broderson found what appeared to be “an
impact zone with a log.” There was “[e]ither skin” or
“maybe a little fiber something . . . that looked like he
had . . . hit . . . there.”
Dr. Broderson had seen “numerous tumbles like
[Thomas’s where] no one had been hurt, so [he] didn’t think
[Thomas] would be hurt from what [he] saw.” Dr. Broderson
explained, however, that he had “never been over to that
edge and looked over.” He thought that the ski “slope
possibly continued out” and was approximately “level,” that
“you could probably ski around [the left side] like you did
on the right side,” where there was “a little easier way to
go down the slope.” He “didn’t realize there was an
embankment”; he “knew there was a little drop-off, but
. . . had no idea it was like what it was there.”
Dr. Gregory O’Shanick, a specialist in brain injuries,
began treating Thomas in June of 1994. Dr. O’Shanick
testified that the object which produced the injuries
suffered by Thomas “would have to be something that was
hard, something that was firm, that was not yielding.”
At trial, the Guardian based her case for liability
solely on the proposition that Massanutten was negligent in
failing to warn skiers of the existence of the drop-off.
In setting aside the jury verdict, the trial court, while
8
approving the jury’s finding in favor of Thomas on
assumption of risk and contributory negligence, ruled: (1)
that without expert testimony “as to what was the standard
of care in the industry,” a lay jury could not “decide what
would be an unreasonable risk”; (2) that there was no
evidence to demonstrate that, had a warning been provided,
it “would . . . have made any difference”; and (3) that
there was no showing “that it was more probable . . . that
the injury occurred after [Thomas] went over the bank than
before.”
Expert Testimony
At trial, the Guardian presented the testimony of
Richard Penniman (Penniman), an expert in skiing safety.
The Guardian asked Penniman whether he was familiar with
“the skier’s code of responsibility.” Upon receiving an
affirmative answer, the Guardian asked Penniman whether
there was “a written ski operator’s responsibility.”
Massanutten objected to the question, and the trial court
responded that “[t]he standard of care in the industry may
be a relevant matter for the jury to consider,” and allowed
the Guardian to proceed. Penniman replied that there was
no operator’s responsibility code.
The Guardian then asked Penniman if he had “an opinion
whether a warning was necessary in the area where Tommy
9
Hoar went off” the ski slope. Massanutten objected to the
form of the question, and the trial court sustained the
objection. The Guardian did not rephrase the question or
pursue the matter further but made a proffer of the
testimony Penniman would have given. Nor did the Guardian
object when Massanutten later produced expert testimony
concerning whether the Diamond Jim trail was marked
appropriately.
The Guardian now maintains that she “was not required
to produce expert testimony as to the standard of care of
ski area operators in the ski industry.” She says that
“[w]hether a ski area ought to alert skiers to potential
hazards or obstacles on a ski slope” is a matter “as to
which [jurors] are as competent to form an opinion as the
witness.”
Massanutten contends, on the other hand, that under
Burch v. Grace Street Building Corp., 168 Va. 329, 340, 191
S.E. 672, 677 (1937), the Guardian is estopped from taking
a position inconsistent with one she assumed previously.
Massanutten says that having “attempted to create a factual
issue of the standard of care . . . by trying to elicit
. . . testimony from [her] expert Penniman” concerning the
existence of the duty to warn, the Guardian “is not
10
permitted now to take the inconsistent position that the
same duty exists as a matter of law.”
The Guardian’s present position that expert testimony
was not required to establish the duty to warn is not
inconsistent with, but alternative to, her unsuccessful
attempt to establish the duty through expert testimony. It
is not unusual in the trial of a case for a litigant to
find himself blocked in an effort to establish a point in a
certain manner and then have to resort to a different
approach to make the point.
It is the rule in Virginia that a litigant “may plead
alternative facts and theories of recovery” and “state as
many separate claims or defenses as he has regardless of
consistency.” Rule 1:4(k). See also Code § 8.01-281(A);
Cooper v. Horn, 248 Va. 417, 423, 448 S.E.2d 403, 406
(1994). We perceive no reason why the considerations
supporting this rule should not also support a litigant’s
shift to an alternative position in a situation like the
present case. 7
7
Massanutten cites Smith v. Settle, 254 Va. 348, 492 S.E.2d
427 (1997). There, the plaintiffs elicited expert
testimony to create factual issues of the existence of the
defendant’s duties and then took the position that the same
issues were matters of law, suitable for jury instructions.
Here, the Guardian was unsuccessful in her attempt to
elicit expert testimony and only then took the position
11
Citing Rule 5:25, Massanutten also contends that by
failing to object to Massanutten’s use of expert testimony
to describe the standard of care and by trying to elicit
such testimony herself, the Guardian has failed to preserve
an objection to Massanutten’s use of expert testimony at
trial. However, the Guardian is not complaining of
Massanutten’s use of expert testimony but of the trial
court’s ruling that she was required to produce expert
testimony to establish a standard of care. Her assignment
of error on the point states that the trial court erred in
setting the verdict aside “on the grounds that expert
testimony was required to prove whether the drop-off . . .
posed an unreasonable risk of injury as to which
[Massanutten] had a duty to warn.”
Next, Massanutten argues that “the introduction of
expert testimony concerning the standard of care with
respect to ski slope operators’ duty to warn was
appropriate and, indeed, required in this case.” We
disagree.
In Board of Supervisors v. Lake Services, Inc., 247
Va. 293, 440 S.E.2d 600 (1994), we said:
Expert testimony is inadmissible regarding
“matters of common knowledge” or subjects “such that
that such testimony was not required. Hence, Smith v.
Settle is inapposite.
12
[persons] of ordinary intelligence are capable of
comprehending them, forming an intelligent opinion
about them, and drawing their own conclusions
therefrom.” Thus, when the question presented can be
resolved by determining what precautions a reasonably
prudent person would have taken under like
circumstances, no expert testimony is required or
permitted.
Further, expert testimony is admissible only when
specialized skill and knowledge are required to
evaluate the merits of a claim. Issues of this type
generally arise in cases involving the practice of
professions requiring advanced, specialized education,
such as engineering, medicine, and law, or those
involving trades that focus upon scientific matters,
such as electricity and blasting, which a jury cannot
understand without expert assistance.
Id. at 297, 440 S.E.2d at 602 (citations omitted).
Here, the issue, as framed by one of the instructions
granted below, was whether Massanutten, in the exercise of
ordinary care, was obligated to warn skiers of an unsafe
condition that was not open and obvious. This was not a
complicated or technical issue, and its resolution did not
require specialized skill or knowledge. Rather, it
concerned matters of common knowledge that jurors, with the
application of a reasonable amount of common sense, are as
competent of understanding and deciding as the expert
witness. Indeed, as Kenneth Hess (Hess), Massanutten’s
assistant ski area manager, put it in his testimony:
“Common sense tells you that you ought to tell people that
13
there’s a problem on a ski slope that’s not easily
identifiable.”
Finally, by way of cross-error, Massanutten contends
that the trial court erred in refusing to exclude testimony
of the Guardian’s expert witness, Penniman, to the effect
that Massanutten had created “a gap in the cut and fill
line” and “a recess of the trees [so that the] trees now
are way, way back away from where the edge of the fill is
[and] the skier no longer has the visual cue that this is
the edge of the trail.”
Massanutten argues that Penniman’s testimony that “the
skier no longer has the visual cue” was inadmissible
because it was based upon an assumption not supported by
the record, i.e., that “the edge [of the ski trail] was not
visible.” Massanutten also says that this assumption was
contradicted by the Guardian’s own witness, Marston, who
testified that he “could tell where [he] thought the edge
of the slope was . . . from where [he was] standing at the
slow sign.”
However, Penniman’s testimony concerning “the visual
cue” was not based upon an unsupported assumption but upon
his personal observations, made on two visits to the ski
slope, and from his having “skied at Massanutten . . .
during [his] investigation of [Thomas’s] accident.” And,
14
although Marston, the Guardian’s witness, said he could
tell where he thought the edge was from where he had
stopped near the “slow” sign, he stated that he did not
realize “the extent of that drop-off . . . until [he] skied
right up to the edge” and found “this very steep, large
vertical drop.”
But even if Penniman’s testimony varied from
Marston’s, it does not follow that Massanutten was entitled
to have Penniman’s version excluded. Thomas is the real
party plaintiff in this case, and he did not testify.
Hence, this situation is not subject to the rule of Massie
v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922), that a
litigant’s “statements of fact and the necessary inferences
therefrom are binding upon him.” Id. at 462, 114 S.E. at
656. Rather, Thomas is entitled to the benefit of the
corollary enunciated in Massie v. Firmstone that “when two
or more witnesses introduced by a party litigant vary in
their statements of fact, such party has the right to ask
the court or jury to accept as true the statements most
favorable to him.” Id.
Primary Negligence
Massanutten cites Whitfield v. Cox, 189 Va. 219,
52 S.E.2d 72 (1949), where we said that “[t]he owner
or proprietor of a place of [business has the] duty
15
. . . to exercise reasonable care for [his invitee’s]
safety and protection — such care as would be
exercised by an ordinarily careful and prudent person
in the same position and circumstances.” Id. at 223,
52 S.E.2d at 73-74. Massanutten then states that
“[i]n order to prove negligence, [the Guardian] had to
demonstrate that Massanutten clearly departed from the
accepted standard of care followed by ordinary,
prudent ski slope operators of similar slopes.”
Massanutten cites testimony by Marston that he
had “seen trails out West that ‘have probably steeper
vertical drops than this off the edge, but they are
always either clearly marked or they are clearly
visible.’” Massanutten then asserts that, here, “the
uncontradicted evidence of [the Guardian’s] and
Massanutten’s witnesses [was] that the day was clear,
the edge was visible from 100 feet, it created a
horizon[ 8 ], and there was a known drop-off of some
unknown dimension.” Thus, says Massanutten, “because
8
The significance of Massanutten’s reference to a “horizon”
is that Marston testified a skier would see a horizon while
“going from the right side [of the ski slope] over to the
left side” and that the horizon is “a key giveaway,”
telling the skier he “can’t continue to see the terrain
because of the steepness of the slope.”
16
the condition was ‘clearly visible,’ there was no need
for . . . [a] warning.”
Continuing, Massanutten submits that it is
irrelevant that “someone else may have marked the
trail differently.” The issue, Massanutten states,
“is whether evidence exists to prove that Massanutten
clearly departed from the accepted standard of care
followed by ordinary, prudent ski slope operators of
difficult courses when it did not mark the plainly
visible edge of a trail beyond which skiers knew they
should expect conditions they ‘may need to avoid.’”
Such evidence, Massanutten concludes, “does not
exist,” and, “[b]ecause there is no conflict of
evidence on this question, the judgment for
Massanutten must be affirmed.”
However, there was a conflict in the evidence on
the question whether the “condition” existing “off the
edge” was plainly visible. As Massanutten stresses,
Marston, the Guardian’s witness, said he could tell
where he thought the edge was from where he had
stopped near the “slow” sign. And Massanutten’s
expert witness, Larry D. Heywood (Heywood), testified
it was his opinion “that the edge of the run . . .
where [Thomas] went off was visible from around 100
17
feet.” But Dr. Broderson, Massanutten’s witness, who
also had stopped near the “slow” sign, stated that he
thought the ski slope possibly “continued out” and was
approximately “level,” providing an “easier way to go
down the slope.” And Penniman, the Guardian’s expert
witness, stated that “the skier no longer has the
visual cue that this is the edge of the trail.” This
conflict in the evidence presented a typical issue for
jury determination.
On a similar point, citing an instruction granted
below, Massanutten points out that an occupant of
premises has a duty to warn of an unsafe condition
unless the “condition is open and obvious to a person
using ordinary care for his own safety.” Massanutten
repeats what Marston said about seeing the edge from
where he stopped at the “slow” sign and about a
horizon being “a key giveaway” that there is “steep
terrain” beyond it. Massanutten then opines that,
with this information available, “it is readily
apparent that ‘a person using ordinary care for his
own safety’ would have avoided skiing near the edge.”
Here again, however, Massanutten is unwilling to
recognize there was a conflict in the testimony
relating to whether the condition existing off the
18
edge of the ski trail was plainly visible, a conflict
that necessarily encompasses the question whether the
condition was open and obvious. That question,
therefore, was also a matter for jury determination.
Furthermore, there was a direct conflict in the
evidence resulting from the “battle of the experts”
over the crucial issue whether Massanutten should have
given warning of the existence of the drop-off, and
this conflict alone was sufficient to make a jury
issue of Massanutten’s negligence. The Guardian’s
expert witness, Penniman, testified that the “hidden
drop-off” constituted a “dangerous area” and that,
according to “the practice and custom in the ski
industry,” a warning in the form of “a simple bamboo
and rope fence,” costing about $10, was needed to
“inform the skier . . . you don’t want to go here.”
On the other hand, Massanutten’s expert witness,
Heywood, testified that “the Diamond Jim run was
maintained and marked appropriately [in conformity]
with the custom and practice” of the ski industry and,
accordingly, that it was not necessary “to put any
type of marking on [the drop-off].” Heywood further
opined that, according to custom and practice, marking
of the drop-off was unnecessary because “skiers are
19
aware that there are edges to the run” and that “[o]ff
the edge . . . is a variety of things, trees, stumps,
rocks, whatever.” 9
Finally, there was a dispute concerning the
purpose of the bright orange “warning barrier fencing”
Massanutten had ordered and received but, at the time
of Thomas’s accident, had not yet attached to the
already-in-place fence posts in the area of the drop-
off. Hess, Massanutten’s assistant ski area manager,
testified that the purpose of the fencing was “[t]o
retain snow on the slope.” However, before Diamond
Jim was opened to the public, a letter written by the
engineer employed in the construction of Diamond Jim
to the slope designer on the project stated that
“[f]encing of the high visibility, portable type will
need to be installed at various locations to direct
9
Citing Atlantic Rural Exposition, Inc. v. Fagan, 195 Va.
13, 77 S.E.2d 368 (1953), Massanutten questions the
propriety of the Guardian’s use of Penniman’s testimony to
prove the existence of a duty to warn. Massanutten says
that the testimony “only compared Massanutten with other
facilities and custom and practice” and that “comparison
with what others may do is not the question.” See id. at
25, 77 S.E.2d at 374. However, it should not escape notice
that Massanutten presented precisely the same character of
testimony on the same subject through its expert witness,
Heywood. Hence, Massanutten will not be heard to complain.
See Hoier v. Noel, 199 Va. 151, 155, 98 S.E.2d 673, 676
(1957).
20
the flow of traffic and to indicate possible hazards.”
(Emphasis added.)
Massanutten devotes a vague footnote to this
subject in which it says that the Guardian
“juxtapositions” Massanutten’s ordering of the fencing
with the letter from the construction engineer “to
infer that Massanutten had planned, but not yet
erected, warning fencing at the area of the drop-off.”
Not suprisingly, the Guardian does exactly what
Massanutten accuses her of. She argues, and we think
justifiably so, that “[t]he jury was entitled to infer
from this evidence that Massanutten obtained and used
this bright orange fencing to warn skiers to maintain
a safe distance away from dangerous areas, that it
intended to do so at the drop-off on Diamond Jim, and
that it was negligent for failing to do so in this
instance.”
Causation
As noted previously, with respect to the issue of
causation, the trial court made two rulings. First, the
court ruled that there was no evidence to demonstrate that,
had a warning been provided, it “would . . . have made any
difference.” Second, the court ruled that there was no
21
showing “that it was more probable . . . that the injury
occurred after [Thomas] went over the bank than before.”
Concerning the trial court’s first ruling, Penniman,
the Guardian’s expert witness, was asked “[w]hat good” a
warning would have been to a skier in Thomas’s situation.
Penniman responded that “a fence or a rope barricade tells
[skiers] that the ski area doesn’t want them over there
. . . that it’s hazardous . . . [s]o they behave
differently”; “[t]hey aren’t as inclined to get close to
that edge”; they “usually approach it much more
cautiously”; and if they lose balance, “instead of trying
to regain their balance . . . they will just fall and let
themselves come to a stop rather than fight it.”
Thomas, of course, was unable, because of his
disability, to tell the jury whether, had a warning been
provided, he would have heeded it in the manner suggested
by Penniman. Nor could anyone have spoken for Thomas. But
“[f]requently material facts are not proven by direct
evidence. A verdict may be properly based upon reasonable
inferences drawn from the facts. If facts are present from
which proper inferences may be drawn this is sufficient.”
Northern Virginia Power Co. v. Bailey, 194 Va. 464, 470, 73
S.E.2d 425, 429 (1952). Here, from the circumstances that
were proven below, and “[a]ccording to the ordinary
22
experience of mankind,” the jury was “warranted in the
conclusion that [Thomas’s] injury would not have occurred
had [a warning] been given.” Southern Ry. Co. v. Whetzel,
159 Va. 796, 807, 167 S.E. 427, 430 (1933). See also
Norfolk S. Ry. Co. v. Lassiter, 193 Va. 360, 370, 68 S.E.2d
641, 647 (1952).
Concerning the trial court’s ruling with respect to
the issue whether Thomas’s injury occurred before or after
he “went over the bank,” the issue could be disposed of
easily by reference to an admission made by Massanutten in
a memorandum supporting its motion to set aside the
verdict: “Although we know that the injury must have
occurred after Mr. Hoar fell and went over the edge, there
is no evidence to show in more detail how or why he hit his
head so as to cause the brain injury.” (Emphasis added.)
Aside from the admission, Dr. Broderson’s testimony
showed clearly that Thomas’s injury occurred after he “went
over the bank.” Dr. Broderson was asked: “[W]hen [Thomas]
fell forward, where was he in relation to the edge of the
trail?” Dr. Broderson replied that Thomas “was actually
over — slightly over the embankment from the time he fell.”
Furthermore, there is Dr. Broderson’s testimony that
he found what appeared to be “an impact zone with a log”
and a substance that was “[e]ither skin” or “maybe a little
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fiber something . . . that looked like [Thomas] had . . .
hit . . . there.” This testimony was sufficient to supply
the final link in the chain of causation from Massanutten’s
negligence to Thomas’s injury, permitting the jury to find
from all the evidence that Thomas sustained his injury by
striking the log after falling to the bottom of the drop-
off and not, as Massanutten hypothesizes, by striking “the
hard packed snow which he would have struck when he tumbled
head first at the edge.”
Assumption of Risk and Contributory Negligence
By way of cross-error, Massanutten contends that the
trial court erred in failing to find as a matter of law
that Thomas assumed the risk of injury and was guilty of
contributory negligence. With respect to assumption of
risk, Massanutten engages in a discussion of the theory of
inherent risks, a theory, as Massanutten acknowledges,
“Virginia case law has not had an opportunity to develop”
in skiing cases. The courts of other jurisdictions,
Massanutten says, have applied the theory and barred
recovery for ski injuries where “the accident resulted from
[risks] inherent [in skiing] and not from negligent
operation of the course.” 10
10
The out-of-state cases cited by Massanutten are Swenson v.
Sunday River Skiway Corp., 79 F.3d 204 (1st Cir. 1996)
24
However, the jury in this case was instructed
according to familiar principles that if Thomas “fully
understood the nature and extent of a known danger, and if
he voluntarily exposed himself to it, he assumed the risk
of injuring himself from that danger” and could not recover
for his injuries. The jury was also instructed that
Massanutten had the duty of proving the defense of
assumption of risk by the greater weight of the evidence.
Massanutten makes no complaint about these
instructions. They constitute the law of the case, and
they do not incorporate the theory of inherent risks.
Accordingly, we will make our decision guided by the
principles enunciated in the instructions independent of
that theory.
We agree with the trial court that whether Thomas
assumed the risk of injury was a matter for the jury to
determine. Here, again, Massanutten asserts that there was
no conflict concerning the subject. Yet, there was dispute
about practically every facet of the evidence relating to
(applying Maine statute, moguls held inherent risk of
skiing); Connelly v. Mammoth Mt. Ski Area, 45 Cal.Rptr.2d
855 (Cal.Ct.App. 1995) (colliding with ski lift tower
inherent risk of sport); O’Donoghue v. Bear Mt. Ski Resort,
35 Cal.Rptr.2d 467 (Cal.Ct.App. 1994) (knowingly
encountering off-trail obstacles inherent risk of skiing);
Atwell v. New York, 645 N.Y.S.2d 658 (N.Y.App.Div. 1996)
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whether Thomas fully understood the nature and extent of
the danger and voluntarily exposed himself to it. The
standard to be applied in an assumption of the risk case
“‘is a subjective one, of what the particular plaintiff in
fact sees, knows, understands and appreciates.’” Amusement
Slides Corp. v. Lehmann, 217 Va. 815, 818-19, 232 S.E.2d
803, 805 (1977) (quoting Restatement (Second) of Torts
§ 496D, Comment c (1965)). These were matters peculiarly
within the province of the jury and properly left to it for
decision.
We take the same view of the question of contributory
negligence. The standard here is an objective one, whether
Thomas acted for his own safety as a reasonable person
would have acted under similar circumstances. See Artrip
v. E.E. Berry Equip. Co., 240 Va. 354, 358, 397 S.E.2d 821,
824 (1990). The jury was so instructed. The jury was also
instructed that Thomas had the right to assume the premises
were reasonably safe for his visit unless he knew or should
have known of an unsafe condition or used the premises in a
manner exceeding the scope of the invitation. Considering
the conflicting evidence in this case in light of these
principles, we think reasonable minds could differ on the
(applying statute making berm at edge of trail inherent
danger of skiing).
26
question whether Thomas acted for his own safety as a
reasonable person would have acted. Hence, the trial court
did not err in submitting the question to the jury.
For the reasons assigned, we will reverse the judgment
of the trial court, reinstate the jury verdict, and enter
final judgment thereon in favor of the Guardian.
Reversed and final judgment.
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