Collins v. Schweitzer, Inc.

21 F.3d 1491, 1994 WL 145098

Opinions

Opinion by Judge BRUNETTI; Dissent by Judge LEAVY

BRUNETTI, Circuit Judge:

Appellants Michael Collins and his two daughters appeal the district court’s grant of appellees’ motion for summary judgment. Collins, who became a quadriplegic after falling and breaking his neck on a ski lift tower, brought a diversity action for personal injury based on the alleged negligent operation of the race course by appellees Schweitzer, Inc. and World Wide Ski Corp. We affirm.

I. Facts and Proceedings Below

Appellee Schweitzer, Inc. (“Schweitzer”) is an Idaho corporation which operates the Schweitzer Mountain Resort ski area in northern Idaho. Appellee World Wide Ski Corp. (“NASTAR”) is a Colorado corporation which promotes amateur ski racing around the country by providing ski areas with a package program for staging races and by keeping a central database of skier times.

At the time of his accident, Collins was an Idaho resident (though he is now a Washington resident) and an expert skier. He had a season ski pass to the Schweitzer Mountain Resort. He was an experienced amateur racer, having competed in dozens of NAS-TAR races and been a top-ranked skier in the Northwest in his age group.

On January 31, 1988, Collins skied his last race. Schweitzer had set up a “dual format” slalom racecourse, in which two skiers race side by side. The finish line was approximately 123 feet above and 48 feet to the right (looking down the slope) of a chairlift tower. Schweitzer had placed nylon net fencing in an “S” configuration in front of the tower, and padding two to four inches thick around the base of the tower. Collins skied the course, finished close behind the other racer, and tried to turn right to avoid him. He fell, slid through the netting, and broke his neck on the tower. He is now a quadriplegic.

Collins brought an action for personal injury and other damages against Schweitzer and NASTAR in the U.S. District Court for the Eastern District of Washington. Collins alleged that Schweitzer was negligent in setting the race course and that NASTAR was vicariously liable for Schweitzer’s negligence, and also negligent in its own right for not properly instructing Schweitzer on the setting of race courses and for not inspecting the course to ensure that it was safe. After defendants contested jurisdiction, the court transferred venue to the U.S. District Court for the District of Idaho. Defendants moved for summary judgment, and the district court granted the motion. Collins appeals the grant.

II. Standard of Review

We review the district court’s grant of summary judgment de novo. T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

III. Schweitzer

A. Applicability of the Idaho skier statute.

In 1979, the Idaho legislature enacted a law entitled “Responsibilities and Liabilities of Skiers and Ski Area Operators,” Idaho Code §§ 6-1101 through 6-1109 (the “Act”). The purpose of the Act is to “define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury, and to define those risks which the skier • expressly assumes and for which there can be no recovery.” Idaho Code § 6-1101 (1990). The Idaho Supreme Court has noted that “in enacting the Act the legislature intended to limit' rather than expand the liability of ski area operators.” Northcutt v. Sun Valley Co., 117 Idaho 361, 354, 787 P.2d 1169, 1162 (1990).

Under the definitions supplied by the Act, Collins was a “skier” and Schweitzer a “ski area operator.”¹ The Act states that “[e]ach 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 ... lift towers and components thereof.” Idaho Code § 6-1106 (1990).² According to the plain language of the Act, Collins as a skier expressly assumed the risk of an injury resulting from striking a lift tower, and therefore cannot recover from Schweitzer for his injury.³

Collins attempts to circumvent this strict risk allocation scheme by contending that the relevant statutory provision is not section 6-1106, but rather section 6-1103, which requires ski area operators to assume a duty “[n]ot to intentionally or negligently cause injury to any person.” Idaho Code (10) (1990).⁴ The section provides that except for nine enumerated duties, a ski area operator “shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106.” Id. Collins contends that the risks of NASTAR racing are not “inherent in the sport of skiing” and that therefore Schweitzer had a duty to reduce those risks. However, the statute plainly states that “inherent” risks include those listed in section 6-1106, one of which is the risk of injuries caused by lift towers. Section 6-1106 does not distinguish between injuries suffered during racing and injuries suffered during other types of skiing, and there is no legislative history to indicate that the Idaho legislature intended such a distinction.⁵

Under the Act, then, Schweitzer owed Collins no duty to reduce the risk of his striking and injuring himself on the lift tower, Without a duty there can be no tort and Collins may not recover from Schweitzer. We affirm the district court’s grant of summary judgment for Schweitzer.

B. Constitutionality of the Idaho skier statute.

Collins contends that the Act is unconstitutional because it grants blanket immunity to ski area operators but not to other tortfeasors, and consequently “unfairly discriminates against skier's and denies Michael Collins the equal protection of the laws as guaranteed by the Fourteenth Amendment.” Brief of Appellants at 27. We review “[h]ealth, safety and economic classifications not based on race or gender ... at the minimum level of equal protection analysis.” United States v. Garren, 893 F.2d 208, 210 (9th Cir.1989) (applying the rational relationship test to a statute discriminating between commercial and non-commercial river rafters). The Act establishes such a classification, and therefore we review it under the rational relationship test.⁶

Under this test, the Act violates Collins’ right to equal protection only if it “d[oes] not bear any rational relationship to a legitimate government interest.” Id. at 210. The government of Idaho clearly has a legitimate interest in promoting the sport of skiing, because the sport “significantly contribut[es] to the economy of Idaho.” Idaho Code § 6-1101 (1990). The Act-bears a rational relationship to this interest because it clarifies the allocation of risks and responsibilities between ski area operators and skiers.⁷ Thus, the Act passes the rational relationship test.

IV. NASTAR

A. Principal/agent relationship with Schweitzer.

Collins’ complaint alleged that Schweitzer was NASTAR’s agent for the purpose of implementing the NASTAR races, and that as the principal, NASTAR was responsible for the negligent acts of Schweitzer. We agree with the district court that the question of whether Collins is NASTAR’s agent is moot.

The general rule in Idaho is that “[a] principal is liable for the torts of an agent committed within the scope of the agency relationship.” Sharp v. W.H. Moore, Inc., 118 Idaho 297, 303, 796 P.2d 506, 512 (1990). However, we held above that under the Act Schweitzer did not commit a tort because Collins assumed the risk of colliding with a lift tower and Schweitzer had no duty to protect him from such collisions. Because Schweitzer never committed a tort, there is nothing to hold NASTAR liable for even if Schweitzer is NASTAR’s agent.⁸

B. General duty of due care.

Collins’ complaint alternatively alleged that NASTAR owed a duty to the skiing public to use ordinary care in instructing ski areas on how to set up safe racecourses, and also to inspect those courses to ensure their safety.

The evidence in the record indicates that Schweitzer assumed full responsibility for racecourse design and layout, and that NAS-TAR never assumed a duty to inspect. Paul Norum, the Schweitzer official responsible for supervising and directing the NASTAR program, stated in his affidavit that

4. Schweitzer has always been solely responsible for the placement, location, maintenance, operation and construction of the NASTAR amateur race course. NAS-TAR is not expected by Schweitzer to provide training supervision or inspection for the amateur ski racing program. NAS-TAR does not send representatives to supervise the preparation of, or conduct of, any ski race.

5. Schweitzer had exclusive control of the slopes and trails at Schweitzer, including the NASTAR amateur race course as part of the skiing offered to the public on January 31, 1988.

Merle Frazier, NASTAR’s vice president, stated in his affidavit that

4. NASTAR does not construct, supervise, direct or control NASTAR ski racing courses at any ski area, including Schweitzer. NASTAR provides written guidelines for placement of race courses but the location and placement of the course is the responsibility of the ski area. NASTAR does not send representatives to supervise the preparation, or conduct of, any ski race.

The NASTAR manual, cited by Collins as evidence to the contrary, gives only general suggestions for the layout of racecourses, and nowhere states that NASTAR assumes any responsibility to inspect them. Finally, Collins does not allege that NASTAR should be required by law to assume a duty to instruct or inspect. Therefore, we affirm the district court’s grant of summary judgment for NASTAR.

AFFIRMED.

1 . The Act defines "skier” as "any person present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails.” Idaho Code § 6-1102(6) (1990). The Act defines "ski area operator” as "any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area.” Idaho Code § 6-1102(4) (1990).

2 . Section 6-1106 provides in relevant part:

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, all whether above or below snow surface: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgroom-ing equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code.

Idaho Code § 6-1106 (1990).

3 .Courts in other jurisdictions considering similar statutes have reached the same conclusion. See Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 428 N.W.2d 742, 744 (1988), appeal denied, 432 Mich. 856 (1989) (plaintiff skier who struck tree growing on defendant’s ski slope expressly assumed the risk of the accident under the Michigan skier statute, which provided that skiers assumed the risk of injuries caused by trees); Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 8 (1st Cir.1991) (plaintiff skier who struck some netting on the side of defendant's trail expressly assumed the risk of the accident under the New Hampshire skier statute, which provided that skiers assumed the risks caused by such objects as lift towers, pole lines, and snow-making equipment).

4 . Section 6-1103 of the Act imposes on ski area operators a catchall duty

[n]ot to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control, or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

Idaho Code § 6-1103(10) (1990).

5 . The only legislative statements on the record about the Act are a "Statement” that the "purpose of this proposed legislation is to provide definitions, duties and the liability of ski area operators, skiers, tramway operators and passengers" and an estimate that the legislation will have "[n]o fiscal impact.” 1979 Idaho Sess. Laws Ch. 270, Statement of Purpose/Fiscal Impact for H.B. 45.

6 . Every other court that has reviewed an equal protection challenge to a skier statute has used rational basis scrutiny. See, e.g., Northcutt, 117 Idaho at 357, 787 P.2d at 1165 (applying rational basis test to Act); Schmitz, 428 N.W.2d at 743 (applying rational basis test to Michigan skier statute); Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671, 679 (Colo.1985) (en banc) (applying rational basis test to Colorado skier statute); Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634, 643 (1991) (applying rational basis test to West Virginia skier statute).

7 . Contrary to Collins’ assertion, the statute does not grant “blanket immunity” to ski area operators. See Northcutt, 117 Idaho at 357, 787 P.2d at 1165 (identifying those actions for which ski area operators remain liable).

8 . The non-Idaho cases cited by Collins to support the proposition that an agent's personal immunity from tort liability does not necessarily extend to a principal are inapposite; they deal with situations where the agent clearly committed a tort but was immunized from liability, whereas here Schweitzer never committed a tort because Collins assumed the risk of lift tower collisions.