Angland v. Mountain Creek Resort Inc., A-57 September Term 2011; Supreme Court; opinion by Hoens, J.; decided June 6, 2013. On appeal from the Appellate Division. [Sat below: Judges Rodríguez and C.L. Miniman in the Appellate Division; Judge McGovern in the Law Division.] DDS No. 36-1-0206 [30 pp.]

Plaintiffs’ decedent, Robert Angland, was skiing at the resort operated by defendant Mountain Creek Resort Inc. when he was involved in a collision with William Tucker Brownlee, who was snowboarding. According to Brownlee, an unidentified person either fell in front of him or cut him off, causing him to turn to avoid a collision with that person. That maneuver caused him to lose control of his snowboard, which became entangled with Angland’s skis.

Angland fell and slid down the slope. Brownlee found him lying unconscious near a concrete bridge that spanned the trail. Angland was hospitalized and treated for a fractured skull. He died several days later.

Angland’s estate filed a complaint seeking damages from Mountain Creek pursuant to the Ski Act, N.J.S.A. 5:13-1 to -12. Mountain Creek filed a third-party complaint against Brownlee, alleging that he failed to comply with the duties of care imposed on skiers by the act and therefore was liable to the resort for his negligent conduct. Plaintiffs filed an amended complaint, adding direct claims against Brownlee, alleging that he was subject to the duties established in the Ski Act and therefore owed Angland a duty of care, which he had violated.

Brownlee moved for summary judgment arguing that the Ski Act does not apply to claims made between skiers, that the appropriate standard of care is that established by the common law, i.e., recklessness, and that there was no evidence that his conduct was reckless.

The trial court denied the motion, concluding that Brownlee’s conduct was governed by the negligence standard of the Ski Act rather than by the common law and that there was sufficient evidence to create a genuine issue of material fact about his conduct and whether he violated the statutory duty of care.

The Appellate Division affirmed. Brownlee’s motion for leave to appeal was granted.

Held: The Ski Act addresses the duties and responsibilities of ski-area operators and skiers and does not govern claims made between skiers, which are governed by the common-law standards that generally apply to claims between participants in recreational sporting activities. When tested against the common-law recklessness standard, there is enough evidence to require that plaintiffs’ claim against Brownlee be determined by a jury.

The Ski Act was passed in response to Sunday v. Stratton Corp., 390 A.2d 398 (Vt. 1978), which held that ski-area operators would be liable for injuries caused by the condition of the "field" but not for those that were the result of the "playing of the sport" itself, as to which assumption of the risk would bar recovery for the injured participant.

Sunday caused considerable concern among ski-area operators and their insurers over the potential liability to skiers. To address concerns regarding the continued viability of the ski industry and the ability of operators to obtain insurance, the Legislature used traditional assumption of the risk principles and statutory comparative negligence concepts to allocate responsibility between resort operators and skiers. It did so by defining the responsibilities of ski-area operators, limiting their liability to a breach of one of those responsibilities, and identifying the duties of skiers and the risks that they assume, for which the operator will not be liable.

Thus, the court says that seen in its historical context, the Ski Act has as its particular purpose the allocation of responsibility between operators and skiers to ensure the continued viability of the industry.

That it was not designed to address claims between skiers is also apparent from its inclusion of a reference to "other skiers" in the list of inherent risks of skiing that each skier is deemed to have assumed. That reference aligns with the statute’s provision that claims against the operator for such risks are barred. Had the Legislature intended to define the standard of care that would apply to claims between skiers, it would have done so. Instead, the statute simply insulates the operator from liability for claims arising from acts of other skiers. Nothing in the statutory framework addresses claims between participants.

The court then says that the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct. However, the Ski Act is relevant to plaintiffs’ claim against Brownlee. The list of the duties owed by skiers is useful as a means to understand the generally accepted conduct expected of skiers. Whether a participant complied with those rules is one factor used to determine whether his conduct was reckless. That is, a skier who negligently violates a duty identified in the act will not be liable to another skier, but a skier who recklessly violates a duty will be liable to the other participant. The duties may be the same, but the standard of conduct that will be required to support liability is different depending on whether the claim is brought against a resort operator or against another participant.

Reviewing the record in the light most favorable to plaintiffs, the court says that their contention that there was no third skier and their expert’s opinion — that Brownlee failed to keep a proper lookout, reacted with a panicked stop, made a sudden change of direction, behaved in an unpredictable manner, and failed to readily respond to the unidentified person by taking evasive action — are assertions that could, if believed by a jury, support a finding of recklessness. Therefore, Brownlee is not entitled to summary judgment.

Chief Justice Rabner and Justices LaVecchia, Albin and Patterson and Judge Cuff, temporarily assigned, join in Justice Hoens‘ opinion. Judge Rodriguez, temporarily assigned, did not participate.

For appellant — John Burke (Burke & Potenza). For respondents: Angland et al. — Phillip C. Wiskow (Gelman, Gelman, Wiskow & McCarthy); Mountain Creek — Samuel J. McNulty (Hueston McNulty; McNulty, John F. Gaffney and Stephen H. Shaw on the brief).